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THE DISTRIBUTION OF 
OWNERSHIP 



JOSEPH HARDING UNDERWOOD, A. M., 

Professor of History and Economics, University of Montana 



SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 

IN THE 

Faculty of Political Science 
Columbia University 



1907 






THE DISTRIBUTION OF 
OWNERSHIP 



JOSEPH HARDING UNDERWOOD, A. M., 

Professor of History and Economics, University of Montana 



SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 

IN THE 

Faculty of Political Science 
Columbia University 



1907 



v<?> 



f\ 







,^^ 



.<! 



PREFATORY NOTE 

For opportunity and aid the writer is grateful to Pro- 
fessor Isaac A. Loos, of the University of Iowa; to Miss 
Margaret A. Schaffner, Ph. D., now of the University of 
Wisconsin, and to Professors Franklin H. Giddings and 
Edwin R. A. Seligman of Columbia University. 

349] 5 



TABLE OF CONTENTS 



CHAPTER I 

Ownership 



PAGE 

Outer Personality 1 1 

Private Property and Estate 12 

The Forms of Ownership 14 

CHAPTER n 

Distribution 

The Impossibility of Absolutely Private Property 16 

Social Limitation of Property 18 

The Impossibility of Permanency of Estate 20 

The Continuity of the Progress of Liberty 22 

CHAPTER III 
Ancient Ownership 

Primitive Possession 23 

Primitive Communism 2^ 

Barbarian Private Property, etc 24 

Patriarchal Ownership, etc 25 

Dominium 30 

Hebrew 30 

Hindoo, etc Z'^' 

Greek 33 

Roman 34 

Teutonic 40 

CHAPTER IV 
Ownership in England 

Limitation of Ancient Slavery 41 

Limitation of Ancient Land Ownership 43 

Limitation of Ancient Corporate Property 47 

Modern Liberty to Own Men 50 

351] 7 



CONTENTS 



[352 



PAGE 



Modern Liberty to Own Land 53 

Centralization under Henry II 54 

Development of Taxation 56 

Detachment of Political Character from Land Ownership 57 

Detachment of Feudal Tenantry from Land Ownership 58 

The Development of Modern Tenantry 60 

The Right of Disposition 62 

Incorporeal Rights 67 

Right of Bequest 68 

Modern Liberty of Corporate Ownership y^ 

The Trading Companies 74 

Freedom of Association yy 

Limitation of Ownership in the Nineteenth Century 78 

CHAPTER V 
Liberty to Own Slaves in America 

Indenture 84 

Black Slavery 89 

Government Aid 94 

Concentration 98 

CHAPTER VI 

Liberty to Own Land in America 

Colonial Limitations 100 

Development of Allodial Tenures 104 

Legal Private Rights in Land 104 

Rights of Possession 106 

Rights of Use iii 

Rights of Disposition 112 

^The Land Policy of the Government '. 116 

CHAPTER VII 

Liberty to Own Corporate Property in America 

Early Commercial Regulation 118 

Beginning of Corporations 119 

General Laws of Incorporation 122 

Charters as Contracts 122 

The Fourteenth Amendment 124 

Ease of Incorporation 126 

The Aggressions of Corporations 127 

Concentration 129 



^53] CONTENTS 9 

PAGE 

CHAPTER VIII 

Limitation of Slave Ownership 

The Abolitionists 133 

State Opposition 134 

The Civil War 135 

Negro Freedom 136 



CHAPTER IX 
Limitation of Land Ownership 

Social Subtractions from Private Property 137 

From the Right of Possession 138 

From the Right of Use ". 148 

From the Right of Disposition 150 

CHAPTER X 

Limitation of Corporate Ownership 

The Abuse of Power 154 

Public Partial Rights I57 

Ultra Vires Acts I59 

The Modification of Patent Rights 159 

Modification of the Dartmouth College Decision 159 

The Common Law 161 

Constitutional Provisions against Monopoly 161 

Constitutional Provisions against Combination 162 

National Legislation and Cases 163 

Police Regulation of Corporations 165 

Of Banking and Insurance 166 

Of Railroads 167 

Of Incorporation 170 

Public Promotion of Commercial Interests 171 

Labor Contracts 171 

Laws Protecting Labor in Employment 176 

Laws Securing Labor in Employment 180 

Strikes 180 

Conciliation and Arbitration 181 

Employers' Associations 182 

Labor Unions • 183 

The Inefficacy of Laws 183 



lO CONTENTS [354 

PAGE 

Ameliorations of Inequitable Distribution 184 

Public 185 

Charities 185 

Municipal Ownership 186 

Corporate 187 

Profit Sharing 187 

Stock Ownership 188 

Cooperation 189 

Insurance 189 

Welfare Work of Corporations 190 

Private Philanthropy 191 

The Creation of a Social Interest in Private Property 192 

The Centralization of Government 194 

The Continuity of the Progress of Liberty 195 

CHAPTER XI 
The Ethics of Ownership 

The Inherency of Restriction 197 

Shown in History 197 

Shown in Law 197 

According to the Theories of Property Right 197 

According to the Economic Theory of Distribution 198 

The Arrogance of Privilege 199 

Stewardship 200 

Economic Opportunism 202 

Mutualism 205 

Economic Republicanism 205 

Socialism and Individualism 206 

Social Gains from Readjustment 207 



CHAPTER I 

Ownership 

" Oh^ wealth, sought after, much prized, which we abuse 
while we have it not, which we forget to hate when it is 
in our grasp." ^ Herr Von Vollmar, the socialist, hates 
the idea of " private property." Herr Von Vollmar, the 
gentleman, loves his estate, because it makes Herr Von 
Vollmar, the socialist, a more efficient advocate of social 
ownership. There is no mystery in this forgiveness, for 
an " exemption from self love is not to be found in this 
world." " Wealth is a part of the self that is loved. 
" Property is but the periphery of my person extended to 
things." ^ " Property is the environmental complement of 
the personal spiritual heritage of the ages." " Das Eigen- 
thum ist ein unzertrennliches Attribut der Personlichkeit 
des Menschen." * " Proprietary rights are extensions of 
the power of a person over portions of the physical world." ^ 
Certainly an " attribute " or a " personal periphery " or a 
" power " is a " property " of that to which it attaches. 
Call possessed wealth, then, the outer personality of its pos- 
sessor. If this outer personality is completely subject to 
the inner personality, it may be called the peculiar property 

'^ Rig Veda, sect, i, lect. i, hymn v: 4. 

2 Laws of Manu, ii : i. 

3 Von Ihering, quoted in American Law Review, 29: 171. 

* Samter. Adolph, Das Gesellschaftliche und Privat-Eigeuthum als 
Grundlage der Socialpolitik, p. 5. 

^ Holland, T. E., Elements of Jurisprudence, p. 178. 

355] II 



12 THE DISTRIBUTION OF OWNERSHIP [3^6 

of the individual — it is his " private propert^^" Thus on 
Herr Von Vohmar's estate one man is a servant, one is a 
tenant, one is a landlord. Now the land is the " environ- 
mental complement " of whatever " spiritual heritage " each 
of these several men has got out of the ages. Only the 
landlord, however, has his will. The land is peculiarly the 
outer personality, then, only of Herr Von Vollmar — is his 
" private property." Peripheral expansion, then, may be 
impeded. Certainly the personality — if will is personality 
— of Herr Von Vollmar's tenant cannot expand as freely 
as that of his master. Private property, then, is not merely 
appropriation but disappropriation. The same stimuli of 
internal wants and the same stimuli of external satisfac- 
tions of those wants that led one person to look upon the 
world, to respond to its satisfactions and to accommodate 
himself to its terms — to extend his personality over it — 
produced like responses in another person in the same 
external area. Thus persons are in conflict. It is not 
certain whose " periphery " is to be extended over the 
game and the grain and the slaves. If all of this environ- 
ment or external personality is to be " private " to either 
of the persons who contest for its appropriation, one of 
these persons must be entirely subjected to the will of the 
other. The degree of the advantage which one may gain 
in the contest is the degree of his liberty — or of his power 
to realize his own will. This advantage in the contest is 
private property. 

Individual wills, however, are transitory. New per- 
sonalities or wills arising change the distribution of ad- 
vantages and disadvantages. Change is not sudden but 
continuous. Dominance may not be exchanged for sub- 
jection at once, but a mutual impediment of wills may 
arise. In time antagonism becomes tolerance. Conflict 
becomes truce, balance, equilibrium. Then the " environ- 



227] OWNERSHIP 13 

mental complement " — the external personality — cannot be 
" private," but must be mutually possessed, socialized. De- 
grees of advantage and of disadvantage of course remain in 
this mutual possession. Since it is not a peculiar or " pri- 
vate property " of the individual, since his liberty of will 
has been modified, his property must have a new name. Call 
it the status, or estate, of the individual with reference to 
other individuals. Private property is advantage or lib- 
erty ; estate is mutual impediment or balance. Speaking 
after Spencer, it is economic " equilibration." Ownership, 
then, whether private property or estate, is social conces- 
sion or submission. It is the sanctioned projection of a 
man's self into society. 

Because a man's wealth " consisteth not in the abund- 
ance of the things which he hath," because a man's spirit 
may be inwardly rich inversely to its outward security, he 
may be deferred to. Yet a man's " periphery " is usually 
measured in terms of economic ownership, which is the 
tangible measure of the social submission to his will. The 
power that arises from customary or affectionate allegiance 
may more often than not be found to be the " long result 
of time " — ^the residue of former contributions of goods 
and services to the ancestral personality. The ancestral 
*' periphery " may not have been obliterated at the same 
timie that its material contents were lost. At any rate the 
opposition between pride of birth and pride of wealth is 
modern.^ Homer's heroes and the heroes of the Nibelun- 
gen Lied are noble and rich. In later Greek literature, pride 
of birth is identical with pride in seven wealthy ancestors 
in succession. 

In support of this analysis of property Blackstone may 
now be invoked. " The essence of property does not con- 

1 Maine, Early History of Institutions, p. 134. 



14 THE DISTRIBUTION OF OWNERSHIP [3^3 

sist ill human control over things, but the essence of prop- 
erty consists in the relations among men which arise out of 
a contact of men with external physical nature." 

Ownership measures the control over men. Holland 
analyzes a right into four essential elements : a person en- 
titled, an object, an act of forbearance and a person obliged.^ 
If there were no other men whose actions could be governed 
either negatively by exclusion from material goods, or posi- 
tively by contributions to their wants from material goods, 
there could be no ownership. Accordingly men were once 
held directly as a part of " external physical nature." In 
eastern Africa the ambition of every negro is to have slaves 
that he may no longer have to work himself, but live at 
ease." The African is another Aristotelian. Aristotle 
said : " In the rudder the pilot of a ship has a lifeless in- 
strument, in the lookout man a living instrument." ^ This 
absolute possession was regarded as in the nature of things, 
as indeed it was. A warlike species of ant, formica san- 
guinea has subjugated a negro species, formica fiisca. 
And all races have fohowed the injunction, " Go to the 
ant." The trace of property in men is universally written 
in the law of master and servant. In most civilized coun- 
tries a man is held liable for the faults and wrongful acts of 
his servant.'' 

When goods are relatively less easily appropriated, when 
custom has attached men to homes, it is unnecessary to own 
men in order to get their services. It is necessary only to 
own their homes. Even so much as the direct ownership 
of material goods may become unnecessary to the control 
of men. In the redistributions caused by economic " equi- 
libration" the negative and the positive control of men may 

1 Op. cit., p. 127. - Letourneau, Evolution of Property, p. 98. 

3 Jowett, Politics, bk. 1:6. ^ Pollock, Jurisprudence, p. 50. 



359] OWNERSHIP 12 

be exercised through customary submission, even in the ab- 
sence of part or of all of the objects of " external physical 
nature " out of which the relation originally arose. In- 
stead of things, representatives of things are now the in- 
struments of control. Thus a stock is a representative of 
things, which at a favorable turn of the market, may be con- 
verted into possessions and services of greater extent than 
those which the stock represents. A stock may indeed be 
created and traded for goods without representing any- 
thing. But this capitalized compliance is available only as 
men think that the stock represents things or as they think 
that they can share in the extortion. A stock, which is a 
" fraction of all the rights and duties of the stockholders 
composing a corporation," will soon be inconvertible into 
real things, if the " rights " of stockholders are not capable 
of being physically enjoyed and if the duties of stockholders 
are not performed. Almost the sole value of these rights 
is in the power to control services or laboi", and " the prac- 
tical ownership of its employes involved in the position of 
a monopoly " is not different from that " practical owner- 
ship " of men that results from the possession of any posi- 
tion from which other men may be excluded, but not with- 
out their serious loss. 

Ownership, then, is a relation, not a mere possession. 
It may be represented : 

r as things 

Ownership of men ^ through things 

( through representatives of things. 



CHAPTER II 

Distribution 

The history of ownership is the history of an alter- 
nation between relatively private property and tendency 
to estate. Absolute private property could be found 
only in an absolute tyranny or in seclusion. Complete 
equilibrum could be found only in some chimerical pure 
democracy. There is no such thing as " private prop- 
erty." As the inner personality is not private but 
rather a synthesis of derived emotions and ideas, is so- 
cial, indeed, as " one's individual personality is for the 
most part a product of one's intercourse with other per- 
sonalities," ^ so the outer personality or property cannot be 
entirely private. Entire privacy of either the inner or the 
outer personality would be the direst poverty to the " social 
animal." " The right of property has two elements, so- 
cial and individual." - The " orbit " of the individual's 
outer personality contains the " infringement " of the per- 
sonalities of other individuals. That the term " private 
property " is not used in an absolute sense is seen in the 
common definitions. Blackstone says : ^ " Private prop- 
erty is the sole and despotic dominion which one man 
claims and exercises over external things of the world in 
total exclusion of any one else in the universe." Suppose 
for a moment that " sole and despotic dominion " and 

1 Giddings, F. H., Democracy and Empire, p. 31. 

- Fichte, quoted in de Laveleye, de la Propriete, p. 54. 

3 Bk. ii : i. 

16 [360 



361] DISTRIBUTION ly 

"total exclusion" were possible, these alone would give little 
value to property. A man might be in the middle of a 
field of a thousand acres all alone. If he were unable to 
cultivate it himself, and other men should determine to con- 
cede to him his right of " total exclusion," so that he 
could command no assistance in the cultivation of his field, 
his " sole and despotic dominion " would be worth little 
more than the empire over an iceberg. " Private prop- 
erty is the right to enjoy and dispose of certain things in 
the most absolute manner, as he pleases, provided he makes 
no use of them prohibited by law." ^ But the law is noth- 
ing but the social infringement of the individual's " abso- 
lute manner." " Private property is the right in chattels 
in no way dependent upon another man's courtesy." " The 
universal existence of laws of property is evidence of the 
tenure of property by " courtesy." Austin defines private 
property as " a right over a determinate thing, indefinite 
in point of user, unrestrained in point of disposition and 
unlimited in point of duration." ' An examination of the 
conditions of ownership makes it seem necessary to drop 
the negatives of the last definition. John Stuart Mill 
says that private property is the right to one's own facul- 
ties.* But ownership of only one's own faculties would be 
poverty. To these loose definitions may be opposed the 
more exact statement of Von Ihering : " It is not true that 
property carries with it an absolute right of control. Prop- 
erty in such a form cannot be tolerated by society and 
never has been tolerated. The idea of property cannot 
carry with it anything that is contrary to the idea of 
society." 

1 Dow vs. Guild, 31 Cal., 637. 

-American and English Law Encyclopedia, xix : 284. 

3 Jurisprudence, p. 477. * Political Economy, i, 28. 



THE DISTRIBUTION OF OWNERSHIP 



[362 



How does the idea of society limit the idea of property? 
" The right of property is so far limited that its use may 
be regulated from time to time by law, so as to prevent its 
being injurious to the equal enjoyment by others of their 
property or inconsistent with the rights of the commun- 
ity." ^ The power of the state over private property is 
well defined : *' it may take the property for a public use, 
upon compensation being made or secured. It may take 
by taxation. It may control the use so as to secure equal 
enjoyment." ^ 

Since absolute private property is impossible, what con- 
tent shall be given to the necessary term private property? 
" Property is all the undefined uses of a thing which re- 
main over after the definite and specific uses of others have 
been deducted." It is an " indefinite residuum." ^ It is 
essential to the individual's self realization that he possess 
the greatest allowable residuum. "A man does not pos- 
sess a demesne because he is a prince, but he is a prince 
because he possesses a demesne." ■* Seneca said: " It is the 
census that raises a man to the dignity of a senator." ■"' 
" Die Mensch ohne Eigenthum hort auf Mensch zu sein." " 
The financial magnate is more potent politically than the 
politician. His power is like that of the Nukahiva chieftain, 
w'ho had a right to be chief because of the number of his 
breadfruit and cocoanut trees ; ' or of the old Brehon chief- 
tain whose authority was based on the number of his cows. 
If material property is essential to the complete expression 

1 Washburn, Real Property, vol. 2, p. 2. 

~ Anderson, Dictionary of Laiv. " Private Property." 

2 Commons, J. R., Distribution of Wealth. 

4 Haller, quoted in Loria. Economic Foundations of Society, p. 331. 

5 Quoted in Loria, op. cit., p. 137. 

* Samter, op. cit., p. 3. ''' Letourneau, op. cit., p. 70. 



363] DISTRIBUTION l^ 

of powerful personality, it is no less essential to that of 
lesser persons. " Property is an absolute condition of 
liberty."^ Booker Washington says: "What the negro 
needs is private property, Christian character and educa- 
tion." Civil duties and capacities attach chiefly to economic 
property, as does the sense of responsibility. If then demo- 
cracy is desirable, it is equally desirable that those who 
shall exercise civil duties shall have that security that de- 
velops responsibility. Aristotle said : " " Make even the 
poor owner of a small inheritance. The equalization of 
fortunes is the only method of preventing discord." Aris- 
totle and Plato sought equality of conditions in ideal con- 
stitutions by limiting accumulations, as Lycurgus and Minos 
are said to have based real constitutions on new divisions of 
property; and every political idealist since has based the 
state on a relatively equalized property. 

If social institutions guarantee inviolability of per- 
son, they must also guarantee security of outer person- 
ality or property. The sacredness of private property was 
expressed by Plato : ^ " If a man leaves behind him some 
part of his property, whether intentionally or unintention- 
ally, let him who may come upon the left property suffer 
it to remain, reflecting that such things are under the pro- 
tection of the goddess of ways and are dedicated to her by 
the law." " Thou shalt not, if thou canst help, touch that 
which is mine, or remove the least thing which belongs to 
me without my consent ; and may I be of a sound mind and 
do to others as I would that they should do to me." " May 
I never pray the gods to find the hidden treasure which an- 
other has laid up for himself and his family, he not being 
one of my ancestors, nor lift if I should find such a treas- 

^ Laveleye, op. cit., p. 334. -Politics, v: i. 

3 Laws, bk. xi. 



20 THE DISTRIBUTION OF OWNERSHIP [364 

ure." This divinity of property has been assailed by 
thieves and communists and most effectually by the covetous, 
who has most violated Plato's golden rule of property, 
whose one prayer to the gods is that he may find the hidden 
treasure, whose wand for its location is a representative of 
a thing, a stock, a bond, a mortgage, an usury. Naboth 
lost his patrimony by force ; he would now lose it by mort- 
gage or by speculation, and the new possessor need not ap- 
pease the paternal divinities. The modern stock exchange 
makes the altar of the goddess of ways a cashier's counter 
and exhibits in new ways the anthropomorphism of the 
divinity of property. The avaricious deface their own 
Hermes. Since property is relation to men, sacred regard 
for any relation among men which subjects some men to 
others can be preserved only by the stability of the visible 
symbols of ownership. Accordingly patrimony loses sacred- 
ness with greater ease of transfer, with the developing im- 
materiality of property. Immaterial rights facilitate en- 
croachments on property. Then the efforts of government to 
fix the elusive quantity lessen private prerogative and bring 
social interest into plainer view. Not anarchism but the 
unsocial use of privilege is to be feared by those who la- 
ment the loss of content in the term private property. By 
the enforced intervention of government the social interest 
is made more conscious of itself, and less assured of the 
divinity of its institutions. It is then governed less by rev- 
erence and more by expediency. 

As there is no private property which is not subject to 
social subtractions, so no completely balanced state is pos- 
sible. The sacredness of property is not more a protection 
to the possessors of external physical nature and of servants 
than it is an incentive to those who do not possess to 
struggle for a share. The more secure a position the 
more desirable is its attainment. The struggle to attain 



365] DISTRIBUTION 21 

results periodically in a passing equilibrium of opposing 
classes and individuals. It is, however, but an unstable 
equilibrium, or estate. Those who have less in the estate 
are no more content to remain long submissive to the di- 
vision than are those who have a less share in the regime 
of private property. Those who have lordship in estate are 
no more content with their present powers than are those 
who have large private property. Private property and es- 
tate are respectively no more than names for a relatively in- 
dividualized and a relatively socialized distribution of things. 
The height of private property is no more than the point in 
the conflict w*here the beginning of the swing back to estate 
is inevitable. This change is inevitable because the pri- 
vate property will not stop growing and the number of 
those included positively or excluded negatively in its dom- 
inance of external physical nature also does not stop 
growing and contending, periodically at least, for greater 
rights. In time the owner of much private property is 
too feeble through the very extensiveness of his claims to 
deny increasing rights to these. The privileges which he 
is compelled to allow to his inferiors are soon hardened in- 
to customs. This is estate. The height of estate is also 
no more than the point at which the swing back to private 
property begins. It is the name given to property when 
the residuum of private rights is least. Each stage con- 
tains the next in germ. " Since the tendencies toward both 
cohesion and dispersion are persistent, the social system 
simultaneously exhibits phenomena of combination and of 
competition, of communism and of individualism. Neither 
order of phenomena can ever exclude the other, but at any 
given time one or the other order may be ascendant and 
there may be a rhythm of alternating ascendancy of com- 
bination or competition, communism or individualism." ^ 
1 Giddings, F. H., Principles of Sociology, p. 399. 



22 THE DISTRIBUTION OF OWNERSHIP [366 

It may also appear that the diffusion of Hberty, under- 
stood as relative privilege or security, has been continuous 
through the alternations of private property and estate. 
While personal advantage and expansiveness may be more 
unchecked in an epoch of private property, limitation of 
such liberty results in extension of privilege to larger num- 
bers, both immediately in greater security of estate and 
subsequently in the epoch of private property. Liberty 
is increased quantitatively as well as qualitatively in this in- 
clusion of numbers. Thus the processes of liberation and 
of limitation are equally essential in the evolution of better 
distribution — of a better social adjustment. In limitation 
the greater freedom of a few^ becomes the comparative free- 
dom of many. That greater freedom may have been 
specious, because its chief support was personal force. By 
Hmitation liberty may gain in security more than it loses in 
extent. Social adjustment gains in stability with the multi- 
plication of those who are interested in stability. 



CHAPTER III I 

Ancient Ownership 

The primitive man, like the cercopithecus, probably appro- 
priated only what he ate. Such possession was not owner- 
ship. It had no extension in time or in space. It had no 
other support than the physical strength of the possessor. 
There was no established relation among men. The Bush- 
man has no house. He lays up nothing for the future. He 
possesses as an individual the food that he has in his hand, 
the woman that he keeps by his side. He owns nothing 
that he does not hold. There is no property until fore- 
sight begins. If any ownership may be assumed here it is 
private property ; it is, indeed, individualism. 

Where the individual is a determinate clan, individual- 
ism passes into communism. Early liberty, which has no 
support but that of physical strength, is checked by a rela- 
tive equality of condition, because when unaided and un- 
varied by external powers men are nearly equal. This 
equality soon becomes the unity of communism. If the 
savage clan has too little for its needs, and if it must fight 
with another clan, why should the individual fight with his 
clansman for more than enough? Or if the savage clan 
sprang up first where nature was profuse, why should the 
individual concern himself to take more than enough? The 
whale cast up by the sea is shared by all the clan, so is the 
captive. Even after captives and women are used as do- 
mestic animals rather than as food and trophies, thereby 
making land more than a place to pitch tents, doubtless the 
367] 23 



24 THE DISTRIBUTION OF OWNERSHIP [353 

clan at first owns them. The clan disposes itself on the 
land not with reference to ownership, but with regard to 
kinship. If it stays in one place, it obtains a conscious- 
ness of territorial claim, but subdivides it only for pur- 
poses of cultivation, and periodically reallots it to its mem- 
bers. It is the work rather than the land that is allotted. 
No one wants to own more land when ownership means 
only more work for himself. So the Kaffirs have no 
private property in land, but reallot it.^ Throughout 
Africa are the survivals of the old communal clan.^ Pri- 
mitive communism was general. The Australian clan holds 
the property even to clothing and women. ^ The Eskimo 
clan owns its ice pack. The Iroquois lived in long houses, 
and the Pueblos in their casus grandas. The Jesuits per- 
fected aboriginal communism in Paraguay for the love of 
God and for the gain of earthly dross. 

The barbarian who has been fortunate in his allotment 
and in his possession of "domestic animals" likes his place; 
and private property must be supposed to have very early 
and very generally taken the place of primitive commun- 
ism. For the habit of letting the strong man alone in his 
possessions is easily developed. Habit is custom. Custom 
is law. Ownership in land approximates to the already well 
developed forms of property in weapons, utensils and slaves. 
Private property is found in process of development among 
many savage tribes. Thus the Hottentot who has no land, 
has cattle. Some Hottentots have no girls; others have 
many and these can bu}^ more oxen. So there are found, 
just as in civilized society, the improvident poor and the 
prudent rich who buy girls of six or seven with an eye to 

1 Letourneau, op. cit., p. 88. - Ibid., p. 107. 

3 Ibid., p. 37- 



369] ANCIENT OWNERSHIP 25 

future wealth/ In all periods the status of women and 
children will be found approximating that of other prop- 
erty. It may be cited as some evidence that a rudimentary 
stage of private property followed the primitive commun- 
ism and preceded patriarchal property, that those savage 
tribes whose ownership is apparently private are lower in the 
scale than those where family ownership has grown. The 
African tribes whose individuals are said to own absolutely 
are inferior to the Javanese dcssas ~ in which the common 
welfare precedes the welfare of the individual. Aristocracy 
begins among the Kaffirs. The society on the Gaboon has 
its strong boxes and its social elect, who live nobly, do 
nothing and are well fed. Among the American Indians 
may be seen a transition from communism to private prop- 
erty. The Eskimo may pitch his igloo apart from his fel- 
lows and forego the right to their help.^ The concentra- 
tion incident to private property is as marked in this period 
of liberty of property as in periods of more advanced civili- 
zation. King Kamrasi, on Lake Albert Nyanza,* took 
the goods of his subjects to lavish on his friends, as 
later English monarchs took the goods of their subjects 
to lavish upon the monopolists. The Malay king of 
Bantam was heir in chief to the whole country, and 
when a man died the sovereign appropriated not only his 
fortune but his wife and children, whom he made slaves.^ 
The New Caledonian chiefs absorbed the ancient rights of 
the community.*' The subject's ownership, such as it was, 
must have been private property, since such confiscation 
is less possible under family ownership. Monarchy can 
develop only with private property. 

If this liberty of barbarian ownership did exist, it al- 

1 Letourneau. op. cit., p. 79. - Ibid., pp. 122-3. ^ Ibid., p. 155. 

* Ibid., p. 93. ^ Ibid., op. cit., p. in. ^ Ibid., p. 77. 



26 THE DISTRIBUTION OF OWNERSHIP [37Q 

most everywhere integrated into family ownership, which 
is the first historical form of ownership. " The sugges- 
tion may be admissible that at least in some cases " family 
ownership " or the semblance of it, may really be not the 
origin but the outcome of intestate succession." ^ As the 
habit of letting alone the strong savage gave him private 
property, so in turn, the chief's habit of letting alone his 
family or his favorites in their customary enjoyment of his 
beneficence creates a status which he finds it easy to let alone. 
" Habit is the enormous fly-wheel of society." " The chief 
was imperceptibly reduced in most cases to an administra- 
tive official of the estate which became the unit of society. 
With Fustel de Coulanges it may be denied that family 
ownership is " agrarian communism," yet it is certainly 
more like estate than like private property. If, as Pollock 
and Maitland say : " in co-ownership, the land is owned 
by individuals, their possession is certainly not the same 
sort of individual ownership as that which is not in 
co-ownership. Even the despotic ownership of the 
Hebrew patriarchs was not an ownership which could 
disregard the well being of the inferior person in his 
family. Although Abraham's " substance was great," 
he might have found it difficult to disregard the sus- 
tenance of Eliezer of Damascus ; for, while Eliezer was 
the slave of Abraham, he was also his steward, and 
in the absence of Isaac, he would have been his chief 
heir, not because Abraham could have willed it so, but be- 
cause, though he had " great store of servants," they had 
a customary right to have their relation to the patriarch 
transmitted to the heir. These slaves, or household re- 
tainers, could be transferred, but not to strangers. A man 

1 Pollock and Maitland, History of the English Lazv, vol. ii, p. 247. 

- James, Psychology, vol. i. p. 121. 

'■' History of the English Law, vol. ii, p. 243. 



371 ] ANCIENT OWNERSHIP 27 

might sell his daughter as a concubine, but not to a stran- 
ger; ^ while the price of a wife was fifty shekels." A man 
might even sell himself, but at the end of six years from 
the beginning of servitude he could " go out free for noth- 
ing." ^ If the man liked his master he might have his ear 
affixed to the door with an awl. But even then the fiftieth 
or Jubilee year freed the servant from the master's property 
right. And the patriarch must treat the servant well, not 
" as a bond servant, but as a hired servant and as a so- 
journer;" he must not "rule over him with rigor." And 
to his handmaiden, as to his ox and his ass, he must give 
rest on the sabbath. And although Abraham purchased 
Sarah for Isaac "with jewels of silver and jewels of gold 
and raiment and gave also to her brother and to her mother 
precious things;"* and, although Jacob paid a high price 
for Rachel and Leah, and Othniel won Achsah, the daugh- 
ter of Caleb, by his exploits, and David procured thus a 
daughter of Saul ; although the concubines of David de- 
scended to his son ; ^ although the kinsman had to take the 
women with the estate, as Boaz purchased Ruth, the 
Moabitess ; " yet these women were not regarded as com- 
plete chattels, as were women in the preceding social stage. 
The land also was not subject to private ownership. 
Property could not be private when it was obtained by rob- 
bery. Tribes must hold together. Outward conflict com- 
pelled an inner unity, which made private property impos- 
sible. Wills were unknown, and the land belonged to the 
Lord, which led to the denunciation of woes upon the re- 
mover of ancient land marks. This led Naboth to say to 
Ahab : " The Lord forbid it me that I should give the in- 
heritance of my fathers unto thee."'' Transfer was difficult 

^Exodus 21: y. " Deuteronomy 22: 29. ^ Exodus 21 : 2. 

* Genesis 24: 53. ^ // Samuel 16: 21. '^ Ruth 4: 10. 

" / Kings 21:3. 



28 THE DISTRIBUTION OF OWNERSHIP [372 

and transient. Symbolic acts were necessary, as the giving 
of the shoe. There were, moreover, restraints on the en- 
joyment of the property, chief of which was the Levites' 
tithe. The owners were forbidden to reap the whole field ; ^ 
while the rich were required to feast all their poor neigh- 
bors once a year. 

The foundation of Indian social order also was the fam- 
ily. The law regarded the family as a corporation. The 
son and the daughter could be sold. Under the caste sys- 
tem, the asura was bound to serve the other classes and the 
slavery was less harsh than that of Rome." As to land, 
after the passing of the early village community there re- 
mained family ownership, with an elaborate inheritance, 
with participation of the heirs rather than division. Prop- 
erty was the means of paying a man's funeral expenses. 
Inheriting the land was inheriting a family, and funeral 
rites. "The right of pronouncing the prayers belongs to the 
son who came into the world first." " He ought therefore, 
to have all." " 

After the legendary golden age of communism among 
the Greeks patriarchal ownership arose. Fustel de Cou- 
langes says that every K/S/pog (lot) remained attached to the 
same family down to the revolution of Cleomenes, i. e., for 
eight centuries. This can scarcely be recognized as private 
property, one of the chief characteristics of which is as- 
sumed to be the right of disposition. Land was " the prop- 
erty not merely of a man but of a family, whose different 
members must be born and die here." * It was universally 
prescribed that it might not be sold. Thus Solon punished 
the sale of land by fine and the loss of citizenship. Aris- 
totle says that many cities forbade sales. Demosthenes got 

^Leviticus 19: 9-10. ^ Hunter, Roman Law, p. 49. 

^ Manu, ix : 105-7. * Fustel de Coulanges, Ancient City, p. 63. 



373] ANCIENT OWNERSHIP 29 

all of the patrimony as head of the family. Liberty of pri- 
vate property scarcely existed where entire classes not 
slaves were excluded from the soil as in Syracuse, Miletus 
and Samos where the Geomori owned the territory to the 
exclusion of the Demiurgic In Rome also the chief own- 
ership of the family property was an office, rather than a 
mere kinship. This was scarcely a regime of private property 
when only the pater-familias could have any rights ap- 
proaching private property. The family, not the individual, 
was sacred. The spirit of patriarchal property spoke in 
Plato's Laws." The legislator says to the dying: "Thou 
art the master neither of thy property nor of thyself : thou 
and thy estate, all these things belong to thy family : that 
is to say to thy ancestors and to thy posterity." 

In Egypt civilization seems to be found in a period pass- 
ing out of complete family ownership, of which there are 
survivals,^ into a caste ownership — like its pyramids, long 
enduring, with a servile mass at the bottom. There could 
be no real private ownership in such a civilization, where 
property in land was mummified, divided among slaves, 
one-third to the priests, one-third to the royal family, 
one-third to the warriors ; and the mass of the people 
could have no property at all where an artisan was " more 
miserable than a woman." In ancient Mexico there was 
a caste ownership like that of ancient Egypt. The land 
and the slaves were not salable. The soil was allotted in 
fiefs, and divided, one-third to the crown, one-third to the 
nobility and one-third to the temples and tribes, and handed 
down from age to age from father to son. No Aztec could 
call a foot of ground his own.'* In Peru the people were 

1 Fustel de Coulanges, Ancient City, p. 301. '^ Laws, bk. xi. 

3 Letourneaii, op. cit., p. 149. 

* Morgan, Ancient Society, p. 203. 



30 THE DISTRIBUTION OF OWNERSHIP [374 

divided into classes and sections, each with its chief. One- 
third of the land belonged to the sun, one-third to the Incas 
and one-third to the people, who tilled it all. 

So from the Javanese dessa and the Abyssynian family 
estate ^ to the Russian mir and the communal survivals in 
Switzerland, Scandinavia and the Orkneys are found evi- 
dences of the general prevalence of forms of property that 
must be called estate rather than private property. It is 
not characteristic of private property that custom regulate 
the allotments of land and the rotation of crops. No such 
liberty was wanted when the Germans were themselves in 
rotation and " agriculturae uiinime student,'' and wanted 
only oatmeal and game and security. When war was al- 
ways imminent, unity, " integration," was more desirable 
than private property. Then they were " beerbten." 
Neither money, nor scarcity of land existed to make it 
worth while to rob them of their inheritance. They had 
not learned the word " Eigenthum." 

If the foregoing conclusions be true, barbarian society 
everywhere passed through an alternation of private prop- 
erty and estate. 

Barbarian estate faded into a more individualized owner- 
ship as the barbarian society gave place to national unity. 
" The agents of legal chance, Fictions, Equity and Legis- 
lation, are brought in turn to bear on the primeval in- 
stitutions and at every point of the progress, a greater 
number of personal rights and a larger amount of property 
are removed from the domestic forum to the cognizance of 
the public tribunals." " The establishment of the Hebrew 
monarchy, with the subsequent development of national unity, 
such as appointment of judges by Jehosaphat, diminished 

1 Letourneau, op. cit., p. 157. 

2 Maine, Ancient Laws, p. 162. 



375] ANCIENT OWNERSHIP 3 1 

the power of the family head and loosened the family bond. 
Through the rapacity of kings and the plunder of neigh- 
bors, through the practice of interest and the consequent 
debt, through contact with Babylonian laws at the period 
of the captivity, the institution of private property was de- 
veloped. Slaves became more numerous. "And lo, we 
bring into bondage our sons and our daughters to be ser- 
vants, and some of our daughters are brought into bondage 
already : neither is it in our power to help it ; for other men 
have our fields and our vineyards."^ Isaiah cried out '-^ 
" Woe unto them that join house unto house, that lay field 
unto field till there be no place, that ye may be placed alone 
in the midst of the earth." This was private property. 
How imperfect was the first civilized conception of private 
property is witnessed in stone by the Babylonians. Sini- 
Istar, son of Ilu-Arba, and Apil-ili, his brother, are found 
paying three and one-half silver minas to Minani, son of 
Migrat-Sin and Ilu-Itura, his son, for a garden and house 
next door. And Minani " will not act contrary to this 
agreement for distant days." Seven people witness this 
and it bears two seals. One of the witnesses must be a 
" servant of the God." And then Minani's right to re- 
claim the land remained as a part of the estate.'^ Still 
transferable mortgages were known in Babylon,* although 
they had no wills. Every kind of commercial paper cir- 
culated almost as freely as a bank note does to-day. ° 

Like the Hebrews, Mohammed said : " The earth is the 
Lord's," and like them also he considered himself the Lord's 
heir, and gave title deeds to the lands, thus breaking the pat- 
riarchal spirit of the Arabs. The Brahman says : " What- 

1 Nehemiah 5:5. - Isaiah 5 : 8. 

^ Lee. Historical Jurisprudence, p. 16. 

* Ibid., pp. 20-30. •"' Ibid., p. 32. 



32 THE DISTRIBUTION OF OWNERSHIP [376 

ever exists in the universe is all in effect, though not in 
form, the wealth of the Brahman, since the Brahman is en- 
titled to it all by his primogeniture and eminence of birth." ^ 
The Brehon bo aire, the Greek chieftain, the Roman pater- 
familias are brothers to the Brahman. Individual desires 
are stronger than paternal duties. Advantage outweighs 
oblig"ations. Individual desire is given freedom under the 
continuance of the same unifying forces that produced the 
larger social units of which these strong persons became 
the autocrats. That is, outward stress enforced union. 
Some necessity of expending social force in conflict brings 
the several units into a common nation. Then when unity 
has produced strength and social security, the individual 
obtains greater liberty within the established national guar- 
antee. But as the individual property is less political in 
character, it is more expansive. Thus individualism sup- 
plants obligation. 

The Brahman or Kshatrya might in times of distress, 
when he required money for sacred purposes, lend to a "very 
sinful man " at a small interest." Private property was 
early conceived by the Hindoos. The liberality of their 
early law to women indicates a change from family to in- 
dividual property. The Chinese house of Tsin (254 B. C.) 
instituted private property,^ which rich men soon mono- 
polized. This ultimately made feudalism necessary, as it 
did in Europe.'* Slavery was complete; but since the land 
holdings were small, slaves were not numerous. With 
the Mexican advance from communism, many were driven 
to sell themselves and their children. So great progress 
was made in personal appropriation, indeed, that it is said 
that Mexicans ate ten thousand Mexicans a year. The 

1 Mann, i, 96. - Ibid., xi, 7. 

3 Letourneau, op. cit., p. 160. * Ibid., op. cit., p. 160. 



377] ANCIENT OWNERSHIP o^ 

old Brehon bo aire destroyed the family communism of 
early Ireland by rendering the chief's share hereditary, by 
attaching broken men to himself, by loaning them part of 
his herds ; and when, through the increase of population, 
the land became valuable, he took that too. 

Greece passed insensibly from the patriarchal stage to a 
landed aristocracy and insensibly private property prevailed. 
The sanctity of ownership was defiled by money and trade 
and by Aristotle's ro/coc , the unnatural gain from money, rather 
than from service. When a loan was raised on a mortgage, 
a notice pillar bearing the creditor's name was placed by 
the mortgaged house. The country was studded with 
mortgage pillars,^ defying the gods Termini. Solon tried 
to correct the increasing inequality, by forbidding the pledg- 
ing of persons or wives or children, by reducing debts, by 
debasing money, by persuading the rich to forgive debts, 
by dishonoring sales of land, by forbidding women to bring 
their husbands more than three robes and a little furniture, 
by encouraging marriage to be for love and -not for money." 
A wealthy man might not live in a community without 
rendering it services. A wealthy citizen was compelled 
to take an ofiice to which a poorer was elected or else 
change estates with him." So the trierarch, choragus, gym- 
nasiarch, were rich men. But in spite of all these restric- 
tions Solon recognized wills, by allowing the childless man 
to choose an heir. Plutarch says Solon by this first made 
the estate of a man truly his own. This led to greater 
inequality than ever. Inequality was further increased by 
Solon's distribution of political privilege according to prop- 
erty, and by Cleisthenes" territorial division. Moreover, 
Solon had helped rather than hindered the development of 

1 Letourneau, op. cif.. p. 241. - Ibid., p. 241. 

3 Ibid., p. 253. 



34 THE DISTRIBUTION OF OWNERSHIP [378 

private property by uprooting the legions of gods Termini. 
Thus the aristocrats of the old order no longer had a mono- 
poly of the gods, nor their estates the protection of super- 
stition. The Greeks made themselves some democratic gods. 
Pisistratus supplanted the gods of the fathers with Hermes, 
the god of commerce and of theft. Solon lamented the 
growing spirit of private property. ^ " The ambition of 
the rich knows no bounds ; the most wealthy wish to grow 
yet more so. Who may be able to assuage the insatiable 
greed. They respect neither sacred property nor public 
treasure." Anacreon says : ^ 

" Love cares no jot for birth, 
And of wisdom he makes mirth. 
He only looks for gold. 
A thousand plagues befall 
Who first was money's thrall 
In better days of old. 
He robs us of our brothers 
And our fathers and our mothers. 
The world with blood he covers. 
But oh ! far worse than all, 
He's the death of us poor lovers !" 

Private property was inevitably concentrated in a few 
hands, the commercial class getting the money and the 
nobles the land." When estate as a political division is 
superseded by private propert}^ patriotism, the communal 
sense, is superseded by avarice or individualism. The aris- 
tocrats in the interest of their property, welcomed the Mace- 
donian and the Roman invaders. Aristotle proposed the 
only possible remedy, a redi vision of land.* 

In Rome absolute, inalienable ownership by one member 

1 Quoted in Letourneau, op. cit., p. 247. - Ibid., p. 247. 

3 Lee, op. cit., p. 165. 

^ Laveleye, Primitive Property, p. 161. 



379] ANCIENT OWNERSHIP 2^ 

of a family, which usually and inexactly is called " pri- 
vate property," slowly became more nearly private property, 
that is, a right obtainable by other individuals than those 
entitled to the headship of a family by birth. " The idea 
of a testamentary disposition of property, which, but for the 
plain teaching of history, we should consider of the very 
essence of ownership, was reached by slow and tortuous 
steps." ^ The early rules of inheritance, first through chil- 
dren, then through agnates, or descendents through males, 
excluding the children of daughters, were modified by in- 
creasing ease of adoption, which increased both the owner's 
power of disposition and the possibility of obtaining owner- 
ship. The Twelve Tables (450 B. C. ) gave the right of 
naming heirs to heads of families who had no children. 
This parallels the action of Solon in Greece. Under the 
praetorian edicts, a form of law reflecting social develop- 
ment, the office of the heir was changed from that of the re- 
sponsible successor to the familia, or aggregate property 
under the patria potestas, to mere executor. The right of 
inheritance was transferred from agnates to blood relations. 
Freedom of transfer was increased at the same time. 
Mancipation an elaborate fictitious delivery of res mancipi, 
was employed in early transfers, requiring from five to 
seven witnesses. This quiritarian ownership gave way 
gradually to the simpler form of usucapio, or bonitarian 
ownership, which had been rendered necessary in ordinary 
transfers by the necessities of an increasing population. Jus- 
tinian said : " " Nothing is so agreeable to natural fairness 
as that the wish of the owner, who desires to transfer to 
another that which is his own shall be respected;" and he 
preferred the prevailing simple form of traditio in trans- 

1 Hunter, Introduction to Roman Law, p. 148. 
- Institutes, II, i : 40. 



36 THE DISTRIBUTION OF OWNERSHIP [380 

fers. The history of Roman property is the history of the 
assimilation of landed to movable property.^ 

During the Empire, sons, who under the old patria po- 
testas could own no property, were first allowed property 
acquired in military service and later that acquired in civil 
service. Later the right of property was conceded even to 
women, and legacy and dowry hunters became a familiar 
phenomenon. The growth of commerce and usury aided 
in the freeing of ownership. Interest is a great force in 
moving property. As in India and Greece, it was made 
higher by attempted suppression. Cato was a usurer. 
Horace " tells us that twelve per cent was honest, sixty per 
cent was usurious. The nobility issued loans in the names 
of aliens.'^ As among the Greeks and the Hebrews, the 
decay of ancestral religion and the neglect of the sacra 
aided in making property private. 

With liberty to own land privately, liberty to own men 
privately also increased. Everywhere men were changed 
from individuals in the household of the patriarch to items 
in his inventory of live stock. As the personality of the 
few was elevated, the personality of the many was de- 
pressed. Debtors had been subject to arrest by their credi- 
tors. The Twelve Tables provided that " after the third 
market day they (the creditors) may divide him in pieces 
among themselves ; if they shall have cut more or less, let 
it not be charged against them." But in later periods there 
was a greater differentiation of individuals from estates, 
and accordingly of the status of women and children, and 
even of debtors, from that of slaves. Whatever may have 
been the status of all these people at various periods, the 

1 Duke of Argyll, Unseen Foundations of Society, p. 136. 

2 Quoted in Letourneau, op. cit., p. 387. 

3 R. H. Inglis-Palgrave, Dictionary of Political Economy, vol. ii, p. 430. 



381] ANCIENT OWNERSHIP 37 

ownership of slaves was sharpened by the legal develop- 
ments which led to greater freedom of these higher sorts 
of subject personalities, such as the practical abolition of 
patria potestas, of nianiis and of confarrcafio, the ancient 
forms of marriage. There was still a vast and increasing 
number of chattel slaves, who were so cheap that they 
might be fed to the fishes. They cost but four drachmas.^ 
Cato the elder, sold his old slaves. Their legal status was 
" pronullis, pro mortis, pro quadrupedibus." Masters were 
compelled neither to clothe nor to feed, and could put them 
to any use or shame. Varro called a slave instruinenti 
genus vocale. Trimalchion, asking how many infant slaves 
were born yesterday on his estate, was told that there were 
born thirty boys and forty girls.' The Christian church 
did not maintain the validity of slave nuptials nor protect 
the female slave. " Servants be subject to your masters with 
all fear, not only to the good and gentle, but also to the 
froward." ^ As in all countries where slavery prevails the 
line between freedom and slavery was readily crossed. 
Thus in the golden age of dominium, Virgil owned Celestes, 
a poet, and Alexis, a grammarian. Mjecenas owned libra- 
rians, readers, musicians, fools, dancers, tasters, hair ex- 
tractors, and many other sorts of artists. Torturers and 
whips were kept even by the Roman matrons, for their 
tiring ladies, who might be tortured for the entertainment 
of visitors.** The doom of St. Agnes was: " Insanus judex 
jus sit eam expoliari, et nudam ad lupanar duci, sub voce, 
praeconis dicentis, Agnem sacrilegium virginem Diis blas- 
phemia inferentem scortum lupanaribus datur." ''' 

1 Letourneau, op. cit., p. 272. 

2 Brownlow, Slavery and Serfdom in Europe, p. 5. 

3 / Peter ii : 18. 

* Blair, Slavery amongst the Romans, p. 259. " Ibid., p. 222. 



38 THE DISTRIBUTION OF OWNERSHIP [382 

As in Judea and Greece, individual advantage meant con- 
centration of property. This concentration was met by re- 
peated efforts to secure greater equality through the distri- 
bution of public lands, to the plebeians. Thus in the fourth 
century B. C. the tribune brought forward twenty-eight 
bills to obtain assignments of lands in favor of the plebeians. 
The Licinian laws sought to check inequality and the con- 
fiscation of the commons by the patricians by forbidding 
any one to possess more than five hundred jugera of 
public land or to have more than five hundred sheep; 
and by compelling every owner to support a certain 
number of free men. After the first Punic war a dis- 
tribution was sought to relieve the misery of the plebs 
who, owing to the natural tendency of large estates 
to absorb small estates, had lost all their property. 
Tiberius Gracchus said (133 B. C.) : "The poor folk go 
forth to war to fight and die for the delights, risks and 
superfluities of others, and they are falsely called lords and 
rulers of the habitable world in that land where they have 
not so much as a single inch that they may call their own." ^ 
He reproduced the Licinian law. But latifimdia was 
stronger than the tribunes, as it always is in every country. 
" Latifundia perdidere Italiam." After the Gracchi were 
got rid of, agrarian laws favorable to large properties were 
secured at the close of the second century B. C. and the 
shares were allowed to be sold, the smaller ones of course 
being absorbed. 

Anciently the third form of ownership, or the ownership 
through representatives of things, was not so important as 
in modern times. A man's ownership was not so often 
symbolized otherwise than in material possessions. Maine ~ 
traces the idea of corporate unity to the ancient clan and 
tribe life. During the ages when ownership in the family 

1 Letourneau, op. cit., p. 270. -Ancient Law, p. 183. 



383] ANCIENT OWNERSHIP 3^ 

was the oiil}^ form of economic security, when there was 
Httle private property of any sort, ownership of corporate 
privilege was of course not differentiated from ownership 
of land. When private ownership with less obligation was 
taking the place of the bonds of kinship, associative owner- 
ship developed among those who were shut out from the 
land. Thus the first organizations now usually referred to 
as corporations were among the artisans and even perhaps 
among the slaves. The Grecian heteroi for religious rights 
arose through the exclusion of the artisans from the 
Eleusinian mysteries.^ There were gilds under the Ro- 
man kings with halls, courts and religious rites." Some 
of these gilds were brotherhoods of those unattached to 
families, organized in order that they might secure an 
artificial family strong enough to stand against the family 
organization of society. Hence they embraced, as again 
in medieval times, all the interests of their members. 
These gilds assimilated to the form of a family. The 
Roman society was given a corpus, as the familia was 
given a persona, a perpetual association. But when 
in the distribution of goods the individual gained at the 
expense of the family, when private property was develop- 
ing in land and in slaves, in these gilds also the economic 
efficiency of corporations overshadowed their religious and 
social efficiency. The organization, once " joint in food, 
worship and estate," remained in an era of private property 
as a business corporation divested of obligation, composed 
of a body of owners of economic advantages for their sev- 
eral interests. Much business fell into the hands of the 
united artisans at first because the pater-familias despised 
business, through leaving it to the slaves of his household. 
But gentlemen, however little they love work, love profits, 

^ Ward, Ancient Lowly, p. 87. 

~ Maine, Early History of Institutions, p. 232. 



40 THE DISTRIBUTION OF OWNERSHIP [384 

and although senators were forbidden by law to engage in 
the degrading pursuit of trade, they did it by proxy. The 
power of these corporations was apparently unrestrained, 
in the manner of their incorporation, in the amount of 
their assets and in their internal management/ The in- 
creasing power of the corporations caused efforts to abol- 
ish them. Caesar restricted them to a few purposes under 
a special charter. And in order to prevent a man from get- 
ting too rich and so getting too much political power, he 
was restrained from having shares in more than one com- 
pany. But greater freedom again prevailed," and private 
corporations are found in all Roman cities. 

Thus gradually all Roman property became free — ^to the 
strong. 

Among the Teutons also, it is probable that family own- 
ership had given way to the beginnings of private property 
before the rise of feudalism, through the encroachment 
of the lords on the rights of the commons. Fustel has 
perhaps demonstrated the existence of private property 
among the Germans in the early middle ages.^ Of the 
English bookland, which was land held by grant of the king 
and his council, absolute ownership in severalty was the 
rule before the conquest.* This bookland was alienable 
inter vivos, and devisable by will." Slaves also were more 
completely owned. " The evidence seems to show that 
serfdom was much more of a personal bondage and less 
involved with the occupation of particular land before the 
Norman conquest than after, in short, that it approached 
the slavery of Roman law." '^ 

1 Baldwin, Modern Political Institutions, p. 146. - Ibid., p. 152. . 

3 Origin of Property in Land. 

4 Taswell-Langmead, Constitutional History of England, p. 11. 

5 Holmes, The Common Law, p. 358. 

Pollock and Maitland, op. cit., i, p. 13. 



CHAPTER IV 
Ownership in England 

Private property at Rome was at its height during the 
internal disintegration, or economic individuahsm, which 
followed imperial unity and strength. When this disin- 
tegration had become political, the pressure of outward 
foes had no longer power to effect again the unity of 
the empire. With political disintegration, ownership could 
no longfer be private. Roman individual ownership lost in 
distinctness with the decay of its national guarantee. There 
was an economic internal integration into larger social 
units. Doinininm passed slowly into estate. Although 
slavery never entirely passed away and strong men always 
commanded the soil, there was less both of slavery and of the 
unconditioned ownership of land. Dominium utile dimin- 
ished dominium directum. 

Private property in men had, indeed, been slowly re- 
stricted before the final disintegration of the empire. The 
concentration of ownership and the decrease of the value 
of men, because of too great supply and because of the 
loss of the Roman world market, changed the inferior class 
from personal chattels to incumbrances or fixtures on the 
land, a sort of real estate. Men were now less attached 
to masters and more to land — a gain in liberty. Thus the 
Lex Cornelia (8i B. C.) made it murder for any one but 
an owner to kill a slave. Claudius made it a crime for 
even an owner to do it. Antoninus Pius decreed that mas- 
ters ill using their slaves must sell them. Manumission 
385] 41 



42 THE DISTRIBUTION OF OWNERSHIP [386 

was for a long time unhindered and slaves were allowed 
to have peculia with the master's permission. Manumis- 
sion had been imperfect. The freedman was usually 
bound to support his patron if the patron became poor. He 
was bound to do a certain amount of work for his patron 
and in case the freedman had no heirs, he must leave part 
of his property to his patron. Lex Junia Norbana (19 
A. D.) gave complete rights to the imperfectly manu- 
mitted. Justinian enacted that when a master desired to 
free a slave, whether the old forms were observed or not, the 
slave became a citizen. He also repealed Lex Furia Can- 
inia, which had prohibited the freeing by will of more than 
a certain proportion of the slaves.^ Gratian (380 A. D.) 
freed the children of public actors from the necessity of 
following their parents' profession. Arcadius (385 A. D.) 
prohibited the sale of slave girls as musicians or dancers. 
Theodosius forbade owners of theaters to have Christian 
slaves." Valentinian in the fourth century forbade the sale 
of servants without the land. So the slave became a 
colonns and held a benefice, even though he must periodi- 
cally kiss the manor-house lock or do some more menial 
service for it. The canons of the councils aided in the 
manumission of slaves in the fourth and fifth centuries. 
It was in these days that Saint Melanie freed in one day 
eight thousand slaves and Saint Pelagia, a penitent actress 
of Antioch, gave money and jewels and freedom to her 
slaves. And slaves could be priests. 

After the sixth century rural slavery was entirely sup- 
planted by the colonatiis, or serfdom attached to the land. 
The natural concentration of private property had also 
depressed the free peasantry into this colonatiis. The eni- 
phyteuta was a frontier tenant by military service, first of 

1 Hunter, op. cit., p. 25. - Brownlow. op. cit., p. 46. 



387] OWNERSHIP IN ENGLAND 43 

the state, then of the private owners. In the prevailing 
insecurity the small owner commended himself and his land 
to his strong- neighbor, who often forcibly assisted in the 
commendation. The barbarians probably did not know the 
difference between a colonus and an emphyteuta in their 
treatment of the conquered. They settled their own cotvi- 
tatus, or military " companions," on the land in much the 
same fashion, and settlement under a lord is a less free es- 
tate than fighting under him. Allegiance is transformed 
into an institution, which readily blended with the colona- 
tus and with the commendatio which were so much like it. 
So emphyteuta, colonus, and comes, under various names 
and tenures became the vassals of feudal lords in feudalism, 
a great but never uniform system of " co-operation for mu- 
tual defense." 

It is not possible to measure the influence of the Christian 
doctrine of responsibility, and hence of the Christian doc- 
trine of price and the condemnation of gain at the expense 
of others, in the substitution of medieval social interde- 
pendence for Roman liberty and subjection. It probably 
was not great. But the church, as guardian of the weak 
and beneficiary of their toils, made serfs of them rather 
than freemen, and aided in the rapid extension of feudalism 
through being preferred, as a master, to the secular lords. 

It is significant that to modern institutions the idea of 
freedom was contributed by those nations which were at the 
time of the coalescence of the north and the south perhaps 
growing out of a patriarchal and communal into an individual 
economic organization, while the idea of law and gradation 
was contributed by those nations which had exhausted the 
capabilities of ancient individualism. 

Whatever Anglo-Saxon private property there may have 
been in England was early absorbed in the manor. This 
was developing doubtless from barbarian times. The Ro- 



44 THE DISTRIBUTION OF OWNERSHIP [388 

mans probably made coloni of the Britons/ Though slav- 
ery did exist and bookland was ahiiost private property, 
there was not the clear distinction between free and slave 
that prevailed among the Romans. The status of men and 
of land is inseparable. " Feudalism is the complete asso- 
ciation of territorial with personal dependence and of both 
with definite rights and duties of jurisdiction." ^ Settle- 
ment on the land degraded the relation of princcps and 
comites. In the time of Tacitus ^ it was a disgrace for a 
chief to be surpassed in valor, but property took the place 
of valor ; the gcsiths or companions of the king became his 
servants, or thegns; thegnhood attached to five hides of 
land, and replaced the earldom of blood. Alods were sur- 
rendered to the king to be received back as benefices. The 
township became the manor. The Witcnageinot, or coun- 
cil, replaced the folkinoot. In the tenth century the land- 
less man was dealt with as a robber.* Tenancy and de- 
pendency were assimilated to each other before the con- 
quest. The right of devising by will ceased at the con- 
quest."' The feodum was a heritable, not a devisable right. ** 
The right of transfer inter vivos was limited by restrictions 
in favor of the heir.'' Property was an appendage of rank 
in a descending scale of subordination. The maintenance of 
orderly gradation, not of liberty, was essential to social wel- 
fare. " The successive claims of king, lord, tenant became 
established and the law speaks subsequently not of property 
in land, but of estate." '' 

1 Brodrick, English Land and Landlords, p. 3. 

- Pollock, The Land Lazvs, p. 30. '■ Gcrmania, 13: 114. 

* Pollock, Land Lazvs, p. 31. 

•^ Digby, The Lazv of Real Property, p. 29. 

^ Pollock and Maitland, History of English Law, i, 44. 

^ Taswell-Langmead, Constitutional History, p. 51. 

** Digby, op. cit., p. 61. 



389] OWNERSHIP IN ENGLAND 4^ 

The villein was at the mercy of his lord in all but life 
and limb. He could be brought back if he left his manor. 
He must labor on the lord's demesne two or four days a 
week and besides on " boon days," or harvest days. The 
regime of private property as now understood cannot be 
said to have existed when it was conceived that the poor 
could confer boons on the rich. Rents were exacted. 
Thus " Walter Johan holds from the lord in villenage one 
messuage and ten acres of land by paying thrice yearly at 
the festival of the Blessed Mary of Hunthield 4s. 55^d. and 
at Easter 20^ d. and at the feast of St. Michael 20^ d. and 
at the feast of Christmas a hen and a half, the hen being 
of the price of i^d." ^ Although the free tenants, lihcrc 
homines, had superior rights, there were recorded in the 
Doomsday Survey only 4% of the population as lihcrc 
homines; while the services of freemen differed from those 
of villeins apparently only in the amount and the certainty 
of work. Every tenant, whether he was a tenant by knight 
service, holding his land by kiss of his master and by oath 
of fealty, or a socage tenant giving services or goods, or a 
villein holding by mean services, was robbed in various 
conventional ways by his lord. The lord had a right to 
fine the tenant for alienation of his land ; to the escheat of 
land without an heir. For the knighting of his son or the 
marriage of his daughter or for his own ransom he might 
exact the cost from his tenants. He had a right to " primer 
seisin," one year's profits from the tenant's heir. The lord 
controlled the marriage of the tenant's daughters, later also 
of his sons. This oppression was aided by the lord's poli- 
tical headship of the community. He was head of the 
court baron, with the civil jurisdiction of the manor, and 

1 Ashley, "Villein Tenure," in Annals of the American Academy, i» 
p. 412-25. 



46 THE DISTRIBUTION OF OWNERSHIP [3^0 

of the court leet, with criminal jurisdiction. " Whenever 
the lord has a doubt concerning the heir of the tenants, 
whether or not he be the rightful heir, he may hold the 
land until the matter be established according to law." ^ 
But even the villain had some privileges, which lessened 
the lord's right in the estate to some degree. Thus on fixed 
days he drank scotale with the lord — at his own expense.'' 
He received some annual favors from the lord. Thus 
the swineherd of Glastonbury Abbey received one suckling 
pig a year, the interior parts of the best pig, and the tails 
of all the other pigs slaughtered in the abbey. ^ But there 
were substantial rights. Thus the lord could not remove 
the tenant as long as he rendered the service due.'* The 
serf who would have been in former times a slave, now 
might get " seisin of liberty," when the lord could not re- 
cover him without a writ; he might defend himself in a 
king's court.'"' He might serve as presentor or juror in 
courts.** The same person was treated by the law now as 
a free person, now as a slave or chattel. The laws of 
William the Conquerer provided : " Those who cultivate 
the land ought not to be harassed beyond their proper fixed 
amount; nor is it lawful for the lords to remove the culti- 
vators from the land so long as they are able to render 
the due service." The lord could not alienate in per- 
petuity any part of the inheritance of his tenant.'^ The lord 
was bound to warrant his man, who did him homage, against 

1 Digby, op. cit., p. 91. 

2 Vinogradoff, Villeinage in England, p. 164. 

3 Cheyney, "Recent Tendencies in Land Tenure," in Annals Amer. 
Acad., Sept., i8gi. 

* Pollock and Maitland, op. cit., i, p. 215. 

^ Ibid., i, p. 401. 6 Jl,i(i.^ i, p. 404. 

•^ Digby, op. cit., p. 88. 



391 ] OWNERSHIP IN ENGLAND 47 

all men " that can live or die." The lord was liable for 
his men's good conduct/ Aids were fixed at 2s. for eacli 
20s. of rental value: and reliefs at loos. by Henry I. and 
by Magna Charta at £100 for a barony and lOOs. for a 
knight's fee. 

Thus ownership was an equilibrium. The position of 
the villein was one of precarious, but real ownership. 
" The grinding and hopeless poverty just above the verge 
of actual starvation so often prevalent in the present time 
did not belong to medieval life." ^ The stronger lords 
were indeed more powerful than they might have been with 
private property. But the attachment of political power 
directly to ownership weakens the tenure of ownership. 
Although feudal incidents were made a system of extor- 
tion, by William Rufus (1087-1100), although under 
Stephen the feudal nobles became tyrants in their fortified 
castles, their very power was their weakness. They did 
not have the modern state-supported property. 

As ownership was feudalized, corporations were modi- 
fied in form. The free Roman corporations had become 
distrusted on account of their political character, then util- 
ized as state instrumentalities to supply the public needs, 
and were strictly limited in their powers. Members of 
corporations which were necessary for public interests were 
compelled to remain in them; their property was subject 
to implied hypothecation for its debts. ^ Their children 
were compelled to succeed them. Private business was a 
public trust. Certain corporations, originally private, were 
compelled to supply grain and bake bread as a public duty. 
The individual was merged and the " college " was re- 

1 Holmes, op. cit., pp. 19-28. 

- Gibbins, Industry in England, p. 177 ■ 

" Baldwin. Modern Political Institutions, p. 157. 



48 THE DISTRIBUTION OF OWNERSHIP [3^2 

sponsible for his debts and his crimes. The corporations 
of Rome, both private and pubHc. disappeared perhaps in 
feudaHsm ; perhaps in some cases existed continuously 
throughout that period, becoming gilds. 

The manors, the churches and the towns of feudalism 
were a network of associative ownership. The manor 
was itself a quasi-corporation, since all its members shared 
in the land ; all the tenants of the land were resiarded as 
one, as a fictitious personality, by the lord when he amerced 
it for damage or for waste. ^ The community was liable 
for the collection of duties. Estates were sometimes let 
to real communities. But the manors did not constitute 
corporations in the modern sense, since the liability was 
one jointly and severally.^ When ownership was univer- 
sally associative; when a religious association offered to its 
members greater security than that under individual mas- 
ters, and was able to acquire material goods by spiritual 
labors, it is not surprising that the religious houses en- 
grossed a large proportion of the land in time. But mem- 
bership in these corporations of " God and the saints " 
gave neither rights of possession nor of disposition, only of 
use, and the number of the saints was kept limited to the 
capacity of the land and the peasantry for supporting ease. 
In the eleventh century incorporation was extended to re- 
ligious fraternities outside of the church, such as the Poor 
Soldiers of the Temple of Solomon, later the Knights 
Templars."'' The towns, like the manors, were responsible 
for a lump toll to the king in return for their charters, by 
which they had privileged tenures. This body of privi- 
leges and properties grew in the thirteenth and the four- 

1 Vinogradoff. Villeinage in England, p. 356. 
- Pollock and Maitland, op. cit., vol. i, p. 615. 
3 Baldwin, op. cit., p. 160. 



393] OWNERSHIP IN ENGLAND ^g 

teenth centuries into the conception of a corporation like 
that of the churches. But individual initiative was limited 
in these corporations. Thus the markets of the towns were 
sometimes granted to the burgesses or to a neighboring" 
knight or abbey, to whom the buyers and sellers must pay 
toll for booths, for weighing and the like. The non-pay- 
ment of a merchant of one town by a merchant of another 
town made any fellow townsman of the latter liable to 
seizure. This inter-municipal reprisal caused closer or- 
ganization into the merchant gilds, a privileged class with- 
in the borough and finally ruling it. The earlier volun- 
tary gilds, descended from the frithhorh, or neighborhood 
association for protection, once independent of the govern- 
ment of the town slowly absorbed the town government. 
Association through similarity of occupations produced 
within the towns craft gilds, with power to govern their 
trades, such as the goldsmiths (1327), the mercers (1373), 
the haberdashers (1401). But membership in the gilds 
under' which trade in the towns must be exercised was little 
like modern corporate ownership. There was no freedom 
of possession of gild privileges, for admission was jealously 
guarded; their object was monopoly. Nor was there free- 
dom of use, " for every one who is of the gild merchant 
may share in all the merchandise which another gildman 
shall buy." Each member traded independently under the 
rules. Religious, municipal and social duties were charged 
upon them. And the medieval lawyer distinguished be- 
tween these aggregates, which were like corporations, and 
the persona ficta, or created corporation.^ Freedom of 
ownership was not practicable in times of civil commotion,, 
when there was no national guarantee of security. 

Political unification precedes economic and individual lib- 

1 Pollock and Maitland, op. cit., vol. i, p. 474. 



50 DISTRIBUTION OF OWNERSHIP [3^4 

erty. Speaking after Spencer, the "integration" of feudalism 
precedes the "disintegration" of modern private property. 
Un:ty is the transition between two periods of liberty. Be- 
fore a form, of private property can be developed, there 
must be a central power to guarantee its security. The 
guarantee of the central government tov/ards any class un- 
der its jurisdiction tends to uniformity. Uniformity of 
social forms is essential to social sanction. The lord of 
one estate, who holds dependents under one set of condi- 
tions, is outraged at the oppression of servants held under 
another set of conditions. The social integration into 
feudal units was the first stage of the integration of the 
political unity which accompanied and conditioned the slow 
growth of modern private property. 

Liberty to own men as things never became so marked 
in England as in Rome. Although feudalism as an in- 
stitution for the subjection of m.en made outright slavery 
in England unnecessary, slavery existed wherever it was 
desirable property. The traces of an early slavery seem 
again to indicate the prevalence of some approach to pri- 
vate property in England before feudalism. When St. 
Patrick set about christianizing the Brehon law in 430 A. D., 
Fergus, son of Leide, king of Uladh, was receiving twenty- 
one " cumhals," female slaves, as compensation for the 
killing of Echaidh Belbundhe, a criminal under his pro- 
tection.^ The Welsh penalty for cutting off a thumb was 
" half a bond maid." To draw blood from an abbot cost 
seven pounds and a female of the criminal's family to be a 
washerwoman." - Tn England John bought Gunilda from 
Goda for half a pound of silver and gave her to the church 
of St. Peter. Wilfric bought Elfgitha for half a pound. 
Egilsig bought Cynric for an eyre of gold. The mother of 

1 Brownlow, op. cit., p. 120. ^ Ibid., p. 131. 



395] OWNERSHIP IN ENGLAND ci 

Earl Godwin sold beautiful girls to Denmark/ The Bristol 
merchants sold slaves." In the eleventh century English 
nobles were breeding slaves for the market. 25000 servi, 
9 per cent of the registered population, were recorded in the 
Domesday Survey. Under the progressive degradation 
inherent in a servile position and under the instinct of lawyers 
for legal precision and the influence of the Roman law, vil- 
lein tenures came to resemble real slavery. The term villein 
was assimilated to the lower term servi.^ Glanvill said 
that the nativi were so destitute of any kind of property that 
they were legally incapable of purchasing their own re- 
demption from villeinage.^ After the decline of feuda- 
lism the population was so great that the transition from 
slavery to the wage system could be bridged over with- 
out much slaver}^ Upon the scarcity of men following the 
Black Plague (1348), when laborers demanded "fresh 
flesh or fish fried or baked and that hot or hotter for chill- 
ing of their maw " ^ they were met with the atrocities of 
the statutes of laborers from 1349 to 1444 and later by the 
apprentice laws, which might be treated as a rudimentary 
appearance of that stage of complete ownership which had 
been necessary to complete private property in other coun- 
tries. By one of these statutes " if any person refused to 
labor and lived idly three days" he was to be branded with a 
red hot iron on the breast "V," and adjudged the slave of 
the infonner for two years. He was to be fed bread and 
water and refuse meat. He might be beaten and chained. 
If he absconded he was to be a slave for life. If a second 

1 Rrownlow, op. cit., p. iii. 

~ Pollock and Maitland, op. cit., vol. i, p. 12. 

3 Taswell-Langmead. Constitutional History, p. 247. 

■'« Taswell-Langmead, op. cit., p. 247. 

^ Langland. quoted in Brodrick, English Land, p. 17. 



52 DISTRIBUTION OF OWNERSHIP [3^6 

time, he was considered worthless as property and put to 
death/ In the sixteenth century beggars might be con- 
demned to slavery and much later a vagrant might be 
whipped " till his body be bloody by reason of such whip- 
ping." By the time of Elizabeth the practice of binding 
out children as apprentices was extended to agricultural 
laborers. The journeyman in the gild no longer had a 
prospect of mastership. If he asked for higher wages he 
might be sent to the house of correction." But real chattel 
slavery prevailed wherever the English needed it, or could 
profit by the trade in slaves. Cromwell sold thousands 
of Irish to the Barbadoes. Many women were sold as 
prostitutes to the West Indies." A Spanish gentleman was 
sold openly in chains in the Dover market. Three daugh- 
ters of the governor of Limerick were sold to the Indies.^ 
A young English sailor was saved from the Indians by 
pretty Yarna, a Barbadoes girl who hid him, fed him, 
loved him. He sold her for a slave. In 1713 England 
secured the sole right to sell slaves into the Spanish colonies. 
In 1 77 1 one hundred and ninety-two ships of Liverpool, 
London, Bristol and Lancaster carried 47,146 slaves from 
Africa to the colonies. In 1800 there were 45,000 slaves 
in the English West Indies.* The annual average of ex- 
ports from 1680 to 1786 was twenty thousand. '" 

The modern " tripods of Hephaestus," — the spinning 
jenny, the mule, the loom, — instead of serving as 
allies to human hands, speedily became masters of 
"hands." The undemocratic idea prevailed — laissez-faire, 

1 Wade, History of the Middle and Working Classes, p. 47- 

2 Ibid., p. 17. 

3 Brodrick, English Lands and Landlords, p. 179. 

4 Ibid., pp. 186-8. 

5 Cunningham, English Industry and Commerce, p. 316. 



397] OWNERSHIP IN ENGLAND ^3 

let me do as I please, " me " being a man with a hundred 
hands, which speedily became a thousand. The use of 
men, women and children by factory owners at the begin- 
ning of the nineteenth century had all of the advantages and 
none of the disadvantages of slave ownership. Starvation 
brought the wives and daughters of the workmen to the 
factories and since only their labor and not their strength 
had to be bought, there was no waste in wearing them out. 
Half naked women were harnessed to draw carts in the 
mines through passages two feet seven inches high ; children 
of seven worked twelve to fourteen hours a day in factories. 
There were regular traffickers in the children of paupers. 
" In stench, in heated rooms, amidst the constant whirling 
of a thousand wheels, little fingers and little feet were kept 
in constant action, forced into unnatural activity by blows 
from the heavy hands and feet of the merciless overlooker 
and the infliction of bodily pain by instruments of punish- 
ment, invented by the sharpened ingenuity of insatiable 
selfishness." ^ They were fed the same food that the mas- 
ter gave his pigs. Irons were riveted to the ankles and 
chained to the hips of girls and women to keep them from 
running away. Girls were chained to be beaten with 
thongs. The suicides, the murdered and the tired were 
buried secretly. No such cruelty was ever widespread 
under slavery. It would not pay. 

It would be impossible to assign any definite beginning 
to private property in land, since the thing probably was al- 
ways in more or less extended existence. It may here be 
traced back to the conquest, within the period of the height 
of feudalism. " Before the conquest there was no more one 
and the same law for every piece of land than there was 

1 Gibbins, op. cit., p. 389. 



54 DISTRIBUTION OF OWNERSHIP [398 

one and the same law for every man." ^ But the forms of 
subordination had become so nearly uniform that the unity 
efifeGted by William the Conqueror was rather accelera- 
tion of existing tendency than an economic revolution. 
Centralization had proceeded from mark to a union of 
marks, a pagus or gait, then to aggregations of smaller di- 
visions, from hundreds to shires, to kingdoms, to heptarchy. 
Before land ownership could be free, the old ownership of 
law must be brought under government, even though gov- 
ernment is still personal. When William exacted from the 
sixty thousand land-owners at Salisbury Plain (1086) di- 
rect and universal oath to himself above feudal obliga- 
tions, " feudalism was doomed." There was then appeal 
from the lords. This political subordination was aided 
by the confiscation of the former bookland and its conver- 
sion into feudal grants to favorites. William took over 
the Saxon king's private lands and his suzerainty without 
discrimination. Moreover he confiscated 1400 manors 
and more after each disaffection. " The folkland was all 
treated as terra regis.'" ' And the tenanc}^ on it continued 
as copyhold, a form of tenure under which much land con- 
tinued to be held down to the nineteenth century. 

The reign of Henry II was marked by centralization of 
government and subjection of ownership to national power. 
By the constitutions of Clarendon the government secured 
jurisdiction over the church and the custody of the revenues 
of vacancies. The Assize of Novel Disseizin was instituted. 
If a person was disseized of land wrongfully, he was to 
have a remedy by royal writ and a jury. The Assize of 
Northampton (1176) originated the action mort d'ancestor, 
by which the heir of a tenant could prevent the lord or 

1 Pollock, Land Laws, p. 26. 
"^ Ibid., p. 2>7- 



399] OWNERSHIP IN ENGLAND ^^ 

any other interloper from seizing his tenement. The heir 
was entitled to obtain possession against every other per- 
son. A better claim to ownership could no longer be as- 
serted by " self help," but required an action. The de- 
fendant was often the lord who had seized lands on pre- 
text of making good some seignorial claim. Since juris- 
diction now belonged to the king's court the tenant was 
no longer bound to answer in the court of his lord con- 
cerning his freehold without the king's writ.^ By this 
jurisdiction and by the institution of the jury's inquest 
into local affairs, diversity of local custom was broken up. 
The ancient allodial and the feudal military systems were re- 
placed by a national armament under Henry III and Ed- 
ward I,^' while a tax, " scutage," was allowed in lieu of 
military service. Concurrently with the development of 
the militia the ancient police organization was expanded, 
and all men were sworn to keep the king's peace (1195).^ 
All men w^ere thus made part of the national unity. Al- 
though feudalism is said to have been most perfect in the 
first half of the thirteenth century, this very perfection, 
Bracton's " fairly complete system of customary land 
tenures," was the unity necessarily preceding further liberty 
of individuals. Magna Charta confirmed the legal status 
of individuals rather than of estates. "No free man shall be 
taken or imprisoned or disseized or outlawed or exiled or 
anyways destroyed; nor will we go upon him nor will we 
send upon him, unless by the lawful judgment of his peers 
or b}^ the law of the land." * Political unity and civil 
rights were further secured by the admission of the bur- 
gesses to Parliament ( 1264), by the gradual establishment of 

1 Digby, op. cit., p. 71. 

2 Taswell-Langmead, op. cit., p. 155. 

3 Ibid., p. 157. * C. 39. 



56 DISTRIBUTION OF OWNERSHIP [400 

the parliamentary power and by the aboHtion of the Hcenses 
and franchises such as the " hberties " or freedom from 
taxes, services, forest laws and jurisdictional privileges. 

Bracton regarded the tenant, although under a doniinus 
capitalis, as himself a doniinus veriis. The lord might then 
be a trespasser on his own land. The rise of the doctrine 
of estates in the latter half of the thirteenth century with 
a distinct gradation from estates in fee to estates for life 
indicates the substitution of legality for custom in the 
division of lands. Feudal incidents on freehold be- 
came perfunctory. Such services became common as 
for the knight to carry a sword, the socage tenant to 
deliver annually a rose or a peppercorn, or the tenant in 
petit serjeanty to give the king a lance yearly. The prac- 
tice of " uses," by which an estate was conveyed from a 
real owner to a nominal owner, delivered the estate from 
various feudal incidents. The feoffee to uses had no es- 
tate, therefore he was not subject to feudal services.^ In 
1666 relief was granted to the cestui que trust whose trustee 
suffered escheat. The Statute of Uses, which made the 
beneficiary owner the legal owner, was directed against 
the practice of uses in the interest of landlords ; but it was 
so interpreted as to preserve the custom." Feudal incidents 
were formally abrogated in 1660. Freehold tenancy has 
since been regarded as equivalent to full ownership. 

Confiscation changes to taxation as estate with political 
incidents changes to private property. The numerous in- 
stances of confiscation even in the later middle ages dis- 
tinguish the ownership of that time from what is now 
known as private property. William's wholesale confisca- 
tion was necessary at a time when political organization 

1 Jenks, Edward, Modern Land Law, p. 131. 

2 Cf. infra, p. 63. 



40l] OWNERSHIP IN ENGLAND 57 

was not dissociated from the land. Illegal exactions of 
feudal lords and kings burden the annals of many years 
and doubtless must be regarded as a force in changing the 
form of ownership. William Rufus appropriated the 
revenues of vacant benefices. Under Richard I taxation 
was like robbery. One-fourth of all the goods in the realm 
was demanded for his ransom. Demesne lands were sold 
and then forcibly resumed. Edward seized the wool of 
the merchants.^ During the reign of Edward III the right 
of parliament over taxation was established." Edward IV 
and his successors collected "benevolences;" and Henry VIII 
was twice released from his debts by parliament. By the 
dilemma known as Morton's Fork a frugal person was 
asked for money because he must have saved much, and an 
extravagant person because he had much to spend. 

The detachment of direct political character from land 
ownership, though not yet complete, has been advanced 
in our own time. The idea that borough representation 
in parliament was salable property was formally recognized 
by Pitt's proposed reforms of 1785, which set aside 
f 1, 000,000 to buy the consent of proprietors to disfran- 
chisement. In recent times an election for York cost £150,- 
000.^ The reform bills (1832-1884) diminished the poli- 
tical predominance of land ownership. 

Before land can be private property hereditary tenantry 
must be detached from it. Unification of jurisdiction and 
uniformity of tenures, through the increase of legal pro- 
cedure and the registration of tenures effected uniformity 
of dependency. The term villein came to be applied to 
all base tenures alike, whether held by a villein or a free 

1 Taswell-Langmead, op. cit., p. 211. 

2 Ibid., p. 226. 

■' Taylor, Constitutional History, ii, p. 522. 



58 DISTRIBUTION OF OWNERSHIP [^02 

man. A villein might have a freehold tenement or a free 
man a villein tenement/ One man might be a tenant by 
knight service, by serjeanty, by fee farm, by socage and by 
burgage. By making the parcel of land rather than the 
rank of its holder the basis of the tenant's relation, the 
tenant began to be detached from his status, and the land 
to be the subject of contract, hence of private property. 

While superior tenants were gaining rights, legal pro- 
tection was withdrawn from the inferior tenants. In the 
feudal theory the villein's holding was protected in the 
manorial court and by William's decree, the lord was 
bound to exercise his will according to custom. Rapacity 
increased burdens. The lord's interest became the custom. 
In the latter part of the thirteenth century many tenants 
sought to prove that their lords had broken the custom 
and imposed new burdens on them, upon " some sudden, 
fantastic humor " had expelled them and had left them with- 
out remedy.- Religious houses never relaxed a gain. In 1280 
the Abbot of Burton, because his villeins instituted suit 
against him in royal courts evicted them all and seized their 
cattle. They could get no remedy against the abbot, who 
said that, being villeins, nothing was their own but their 
bellies, whereupon by paying heavy fines and acknowledg- 
ing themselves " serfs at the will of their lord " they were 
reinstated. Even in the fourteenth century when the dec- 
imation of the plague increased the value of the tenants, 
such tenure was held to be only of custom, not of law and 
evictions were common. Chaucer says " a cherl hath no 
temporal thing, that is ne his lord's as they say." Under 
feudal theory the lord had little power to eject a tenant, 
even for non-performance of his services.- But difficult 

1 Taswell-Langniead. op. cit., p. 248. 

- Pollock and Maitland, op. cit., vol. i. p. ^^li- 



403] OWNERSHIP IN ENGLAND 59 

and tedious actions before the king's courts were replaced 
by the rule that if the tenant allowed his services to fall 
into arrears for two years the lord might claim the land in 
demesne.^ The right of distress also was exercised, the 
taking and holding of chattels until the tenant rendered dues. 

A customary right in derogation of the homage and 
fealty due to lords was the alienation of tenant holdings. 
Magna Charta restrained the tenant's power of alienation.- 
The fief of that time was neither freely alienable nor ab- 
solutely inalienable.'' Much land had been alienated to 
the church by tenants. Since the church did not die or 
marry and gave only " orisons, prayers and masses for the 
soul of the grantor," the lord was deprived of his revenues. 
The Statute of Mortuwiii (1279) made all alienation to 
the church without the lord's consent illegal. In 1291 it 
was forbidden to alienate to any corporation. The Statute 
de Donis Conditionalibus (1285) denied the power of the 
tenant to alienate his holding to the prejudice of his lord, 
or of his issue. The ideas of the people and of the lawyers, 
who opposed this statute, favored fee simple. The Statute 
Qida Euiptores (1290) gave a right to freemen to sell, but 
the purchaser should go directly under the lord and not 
under the lord's tenant as before. Previously the tenant 
had to reserve land enough to discharge feudal services \ 

to the lord. This statute enabled him both to transfer his 
land and to release himself from the lord. 

Servile tenancy decreased through other causes. The 
Black Plague was a liberator. Savage laws against labor- 
ers did not restrain commutation of services for cash, which 
was more abundant from the thirteenth to the fifteenth cen- 

1 Pollock and Maitland. op. cit., vol. i, p. 334. 

- C. 39- 

^ Pollock and Maitland, op. cit., vol. i, p. 236. 



\ 



6o DISTRIBUTION OF OWNERSHIP [404 

tury. The possibility of getting money in the growing 
towns and the increasing trade lessened the mutual depend- 
ence of serf and master. The necessity of protection for 
the merchants was one cause of the Statutes of Westmin- 
ster ( 1 275-1 285) for the order of the country and hence 
also for the extension of individual initiative and the ulti- 
mate freedom of ownership from the tyranny of manor 
and gild. Wat Tyler's rebellion was a turning point in 
the history of villeinage. While the tenants were escap- 
ing from the land, the lords were making the escape per- 
manent. The Statute of Merton (XlVth century) permitted 
lords to enclose all of the commons but that which was 
necessary for the common use, and even that, if the tenant 
consented. This enclosure increased after the Plague and 
went on until there was nothing left to enclose. Utopia 
says "An covetous and insatiable cormorante may com- 
pass aboute and enclose many thousands of akers of ground 
together within one pale or hedge, the husbandmen be 
thrust oute of their owne or else either by coveyne and 
fraude or by violent oppression they be put besydes it or 
by wrongs and iniuries they be so weried that they be com- 
pelled to sell all." On account of the greater profit in 
sheep than in tenants in the sixteenth centuries there was a 
great increase of enclosures with a new conception of " pro- 
prietary rights" and a new series of peasant uprisings. "So 
now old fathers, poor widows and young children lie beg- 
ging in the streets." In the thirty years from 1769-99 ^ 
2,500,000 acres were enclosed, from 1801 to 1845 general 
acts of enclosure were passed. Now there are many parks 
for wild animals, notwithstanding the population of the 
island. 

But shice land has no value to an idle owner without ten- 

1 Taswell-Langmead. op. cit., p. 238. 



405] OWNERSHIP IN ENGLAND 61 

ants, a new tenantry was developed to take the place of the 
old. In Bracton's time estates for a fixed term of years 
might be created by covenant, but it was personal property, 
the heir not taking the land as in the old tenantry. By the 
Statute of Frauds (1677) all land interests created by any 
process other than deed must be treated as tenancies 
at will only. This not only forestalled any new develop- 
ment of customary rights as an incumbrance on property, 
but destroyed numerous small freeholders who had no 
written proof of ownership. Accordingly at present ten- 
ancies at will are disfavored and tenancies by the year are 
the rule.^ Courts of equity disfavor joint tenancy." The 
courts have made the right of distress, or the seizure of 
tenant's goods, a more efficient instrument in the hands of 
the landlord." "' The tendency of judicial interpretation 
has also been until lately to incline the scale of presumption 
in favor of the landlord on doubtful points." * Another 
evidence of the detachment of the tenants from the land is 
the assessment of the rates on the owner instead of on the 
land as formerly. 

The development of the liberty of land could not go on 
without confiscation of the property of the religious houses, 
which had traded masses for much of the kingdom. 
Henry VIII confiscated the monastic properties, distribut- 
ing it to favorites. At the time of the reformation various 
continental nations had expropriated ecclesiastical prop- 
erty.^ After the Revolution the sovereign's expenditures 
were limited. The annual crown revenue was fixed at 
£1,200,000. The crown lands by the customary surrender 

1 Jenks, Modern Land Law, p. 89. 

- Tiffany, Real Property, vol. i, p. 374- 

3 Pollock. Land Laws, p. 142. ■* Ibid., p. 150. 

■■■ Taswell-Langmead, op. cit., p. 36. 



62 DISTRIBUTION OF OWNERSHIP [406 

of the sovereign have again become folkland/ The sover- 
eign has again been invested with the right of acquiring 
and disposing of private property as any. other individual.^ 

While the landlord was becoming the land owner he was 
also getting power to dispose of his land. " It is not at 
all likely that before the Norman conquest custom had 
anywhere reached the point of letting the owner sell land 
without the consent of his family." ■'' Because land owner- 
ship was a political obligation and a family relation, it was 
not to be easily disposed of. It was less easy for the Nor- 
man baron to give his land to the church than it had been for 
the Anglo-Saxon thegn. To check the freedom of aliena- 
tion by tenants in prejudice of the lord, about the year 1200 
gifts limited to a man and his heirs of his body became 
common.^ But since the king's court favored free alien- 
ation, ''' the law3'ers defeated the limited gift by the interpreta- 
tion, that as soon as the donee had an heir he had fulfilled 
the condition and could alienate. This right of limited gift 
was preserved in the act de Bonis Conditionalihiis (1285) 
which created the fees tail (cut-down fees) reserving heri- 
tability to a certain class of heirs. The land was made to 
*' revert," come back to the donor at the end of a life estate 
or of a male descent, or to " remain " out to the donee's 
heirs — and " reversions " and " remainders " were invented 
which deferred the completeness and clearness of land 
ownership. 

Each grantee was warranted in the possession by his 
grantor and indirectly by all the preceding grantors in turn. 
If the buyer was to have the warrant of the original grant 

1 Freeman, Grozvth of the English Constitution, p. 134. 

2 Taswell-Langmead, op. cit., p. 592. ^ Pollock, Land Laws, p. 22. 
* Pollock and Maitland, op. cit., vol. ii, p. 16. 

^ Ibid., vol. ii, p. 18. 



407] OWNERSHIP IN ENGLAND 5^ 

" assigns " must be mentioned in the transfer to make it 
valid. ^ Hence a transfer required the warrantor's con- 
sent. The Statute Quia Euiptores (1290) made the assign 
hold directly of the first grantor and hold the warranty of 
that grantor from the beginning. While this secured the 
lord's rights, as already seen,' it also made the land more 
readily transferable, assimilated it to property because the 
seller need not then secure the consent of the one from 
whom he bought and because the beneficial services were 
now conceived to be attached to the land rather than to the 
tenant.''^ The lord could then exact services from any one 
who had the land while the tenant might do anything that 
did not injure the landlord.^ There were other barriers 
to alienation. By the apocryphal statute Praerogativa 
Regis fines were imposed on tenants in chief of the king for 
alienation without license. '"^ The Statute of Mortmain 
(1279) prevented excessive alienation to the church and 
tenancies in serjeanty were inalienable. The practice of 
" uses " evaded the Statute of Mortmain and was soon imi- 
tated in the transfers of other lands and prevailed in the 
time of Edward III.'"' They aided insecurity and trans- 
ferability of land by their capacity for fraud of creditors 
and lords, who lost reliefs, wardships, marriages, heriots, 
escheats and aids, while tenants lost their lands by ill ad- 
vised confidence. These trusts were protected only by re- 
ligious obligations until the jurisdiction of the chancellor 
in the time of Richard II began to protect the beneficiary 
owner. The Statute of Uses (153 5)'' was evaded by limit- 
ing a use or trust upon a term of years. Since a term of 

1 Holmes, op. cit.. pp. 373-4. - Cf. supra, p. 59. 

3 Holmes, op. cit., p. 388. 

■* Pollock and Maitland, op. cit., i, p. 325. ^ /^/J _ i. p. 329. 

'' Digb3^ op. cit.. p. 31S. " Cf. supra, p. 56. 



64 DISTRIBUTION OF OWNERSHIP [408 

years was not seizin, estate conveyed for a term of years 
to A for the use of B did not give B legal estate. Uses 
were also created by limiting to A to the use of B to the use 
of C, because the Statute executed only first uses, leaving 
the others to Equity (1551).^ Again uses were created 
by limiting to trustees with active duties to perform, the 
statute being held not to apply to active trusts or express 
trusts. " Bargains and Sales " were made valid by which 
the legal owner entered into an agreement with a purchaser 
for the sale to him of his interest, the purchaser paying or 
promising to pay the money for the land. At common law 
a legal conveyance must be added, but in equity a " use " 
was raised in favor of the purchaser, the bargainer being 
only the legal owner. - 

In addition to the ancient feoffment other methods of 
transfer arose. The "fine" ("final concords"), from 
1 179 on, was a compromise of a fictitious action, by which 
land was transferred and an elaborate record preserved in 
the treasury to prevent forgery. A "recovery" (1300) 
was an evasion of the statute of Mortmain, by which the 
religious men sued the tenant who by collusion defaulted.^ 
This legal process took the place of the forbidden gift. 
The same evasion might always be accomplished by license 
of the crown. 

It became the settled practice to bar entails by the col- 
lusive suit, known as " recovery." The tenant in tail being 
in possession, a collusive person brought suit to recover a 
freehold as its true owner. The tenant did not defend the 
title, but " vouched to warranty " a third person from whom 
he professed to have title, who warranted it against all 
comers.* This person disappeared in contempt of court 

1 Jenks, op. cit., p. 128. - Digby, op. cit., p. 357- 

3 Ibid., p. 218. * Cf. supra, p. 63. 



409] OWNERSHIP IN ENGLAND 65 

and hence his heirs were barred their reversion. The pur- 
chaser got the land by default, privately settling v\^ith the 
seller. This procedure was afterwards reduced to a ficti- 
tious record. The tenant in tail could go through all this 
performance, give a fee simple to another, have it recon- 
veyed to himself and thus bar his own issue. A statute 
of Henry VIII made it possible to do the same thing by a 
fine.^ Another evasion of the legal public transfer by 
feoffment was the lease of land with entry upon it, and the 
subsequent release of the tenant, which gave him a free- 
hold estate.- 

The chancery permitted secret conveyances by allowing 
the creation of uses to be by word of mouth or by implica- 
tion." The beneficiary owner need not be known. An 
owner might also covenant to stand seized for another with- 
out livery of seizin. By these conveyances uses could be 
created without the transmission of estate. To prevent 
these obscure conveyances the Statute of Enrollments 
(1636) provided that freehold estate should pass only if 
the bargain and sale were enrolled within six months. This 
created a new conveyance by registered deed, which was a 
step toward secret conveyance.* The Statute of Enroll- 
ments applied only to freehold estates, not to terms of 
years. A secret mode of transfer was invented by which 
an estate for years was created by bargain and sale and 
immediately the new tenant was given a release of the re- 
version to the seller. This release was the general mode 
of conveying freeholds until 1841, when a release was 
made as efficient as a lease and release by the same parties.'* 
One document was sufficient. 

1 Digby, op. cit., p. 254. - Ibid., p. 320. 

3 Jenks, op. cit.. p. 301. ■* Ibid., p. 303. 

^ Digb3% op. cit.. p. 367. Jenks, op. cit., p. 305. 



66 DISTRIBUTION OF OWNERSHIP [^jq 

Other measures of recent times have removed the dis- 
abilities of certain classes of owners. A king or a corpor- 
ation could not convey by bargain and sale, nor could terms 
of years be so transferred. A grant was necessary. Free- 
hold estates lay in livery of seizin, other estates lay in grant. 
The Act to Amend the Law of Real Property (1845) ^'^- 
acted that all corporeal hereditaments as to conveyances of 
freehold should lie in grant as well as in livery. The deed 
of grant became the common form of transfer. Fines and 
recoveries were abolished in 1833. Since the Disentailing 
Assurances of 1833 a tenant in tail can convey an estate 
in fee simple without recourse to fines and recoveries. This 
assurance is an enrolled deed and requires the consent of 
the " protector of the settlement." ^ Since Lord Cairns' 
bill of 1 88 1 the conveyancer may entirely ignore forms and 
fit his instrument to the transaction in hand.' No especial 
words, such as " enfeoff," are necessary as formerly. And 
solicitors are no longer paid according to the length of 
their papers. 

Li order to curb the power of destroying future private 
rights in land by the exercise of present powers a limit 
must be set within which future estates must take effect. 
Future estates after the introduction of recoveries, were 
liable to be turned into fee simple and alienated as soon as 
the tenant in tail came of age. Settlements were prevented 
from creating estates in remainder by the rule against 
perpetuity, which prevented alienation of lands for a longer 
period than lives in being and twenty-one years after. 
Attempts to control alienation for a longer period are void. 
The Thelusson Act forbade the accumulation of incomes of 
any property beyond the life or lives of persons making the 
disposition for a period of more than twenty years from the 

1 Jenks, op. cif., p. 357- " ^^'d-. P- 310. 



41 1 ] OWNERSHIP IN ENGLAND 57 

death of such person or persons, or longer than the minor- 
ity of such persons as would, if of full ages, be entitled 
under the disposition to the income to be accumulated. 

Thus land was slowly approximated to a chattel. The 
question may now be proposed, What part had the increase 
of incorporeal rights in the increased transferability of land? 
These partial rights increase the possibility of obtaining the 
services of estates, while lessening the necessity of personal 
attachment to the land. Hence they increase transferabil- 
ity and freedom of ownership. The increasing " Dinglich- 
keit," the development of the feeling that the tenurial rent 
service, the rents charge, the annuities, the corodies, or an- 
nual provisions for religious houses, advowsons or livings 
and the rights of common may be treated as things trans- 
ferable apart from the land, aids in the reduction of land, 
less these rights, to a thing that may be freely owned. The 
increase of contract increases the freedom of land ownership, 
b}^ decreasing direct dependence on the land. The Anglo- 
Saxons scarcely knew what credit was.^ The evidence of 
contracts in time decreased in solidity from the presence of 
the actual property on which it is based to the festuca, or 
notched stick, then any trifie connected with the land, then 
the handclasp, then the piece of paper ; and the solemnity 
of contracts decreased from the fides facta, with God as 
witness, to the mere signature of those contracting. The 
" earnest " or " symbolic payment," " the Holy Ghost's 
penny," the quid pro quo, even if it were as cheap as pray- 
ers, was necessary to a valid promise in the fourteenth 
century. The development of contracts about the land 
aided in the increase of the practice of letting land for terms 
of years ~ and the qualified villeinage by agreement of the 

1 Pollock and Maitland, op. cit., ii, p. 182. 
- Ibid , ii, p. 215. 



68 DISTRIBUTION OF OWNERSHIP [412 

thirteenth century must be recorded as influences in the 
freeing of the land. 

Early systems of law do not recognize resort to a debtor's 
land for payment of his debts/ Recourse to the land was 
obtained only in recent times. Judgments were first en- 
forced against the land in behalf of the crown. By the 
Statute of Westminster (1285) creditors were enabled to 
obtain judgment in an action at common law, and to choose 
either to have execution by the sheriff upon the goods of the 
debtor, or to have a writ of elegit commanding the sheriff 
to deliver to him one-half of the land until the debt be 
levied. The Judgment Acts (1838) extended action to 
legal and equitable interests of any kind." The Judgment 
Act of 1864 gave the creditor in possession an order for 
the sale of the debtor's interest. The liability of the heir 
for debts was formerly confined to those secured by land. 
As late as 1807 it became possible to realize out of the 
lands of the deceased a debt that was not secured by a 
deed.^ The Bankruptcy Acts (1883-90) give a receiving 
order against any debtor upon proof of certain conditions 
constituting an official receiver a quasi-trustee and man- 
ager of all the debtor's property.* Married women's prop- 
erty was also made subject to bankruptcy proceedings in 
1882.^^ 

The right of disposing of land freely by will was like- 
wise slowly gained. The Anglo-Saxons redeemed their 
souls with post obit gifts. These later became impossible 
because there was no livery of seizin.'' In the eighth cen- 
tury the dying wiped out their sins at the expense of their 

1 Jenks, op. cit., p. 247. - Ibid., p. 257. 

3 Ibid., p. 264. Digby, op. cit., p. 284. 
* Jenks, op. cit., p. 248. ■' Ibid., p. 253. 

6 Pollock and Maitland, op. cit., ii, pp. 316-7. 



413] OWNERSHIP IN ENGLAND 69 

heirs by giving the bookland to the church, which pro- 
tected them by the witness of the clergy from the " avarice 
of their kinsfolk." ^ These wills bequeathed the soul to 
God, the virgin and the saints ; the body to a certain church, 
a mortuary present being made with it, and bequests were 
made for bridges and friars. '' The earlier the will the 
more prominent is the other-worldliness of the testator." " 
The church was the executor of the will and administered 
the estate for the good of the soul of the deceased. Na- 
turally the church made it heinous to die intestate. In the 
twelfth century, the courts intervened to prevent the church 
from taking advantage of infirmity.^ 

Since land holding was both property and office the king 
desired that the fiefs should not be divided. ■* By far the 
greater part of the free tenures in England at the end of 
the twelfth century were military tenures and fell within 
the rule of primogeniture, which took the place of an older 
more equitable division of property. Despite the fact that 
men were " too fond of their younger sons," ^ the court of 
Henry II made the rule of primogeniture apply to all free- 
men. Later customary primogeniture applied even to vil- 
lein tenures. 

Yet in some boroughs the ancient liberty of will had 
been preserved.*^ Under the chancellor the practice of dis- 
posing of uses of land by will became prevalent.^ The de- 
vise was merely the disposition of a use. The Statute of 
Uses sought to abolish the power of devising lands, but it 
was ineffectual. The Statute of Wills (1540) enabled the 

1 Pollock and Maitland, op. cit., ii, pp. 316-7. 

2 Ibid., ii, p. 338. 

3 Ibid., ii, p. 326. * Ibid., ii, p. 261. 
5 Glanville, quoted by Pollock and Maitland, op. cit., ii, p. 262. 

« Digby, op. cit., p. 2>77- ^ ^bi4., p. 2,77- 



JO DISTRIBUTION OF OWNERSHIP [414 

tenant in fee simple " to give by his last will and testament 
in writing " all lands in socage and two-thirds of those in 
knight's service. The abolition of military tenures (1660) 
made all lands devisable. The security of wills was aided 
by the Statute of Frauds which made signature and three 
or four witnesses necessary, and the Wills Act (1834) for- 
bade voiding the will on account of the incompetency of a 
witness or on account of the interest of a witness. The in- 
tention of the testator is made the basis of interpretation 
and fees simple are created by the courts on the slightest 
evidence of intention to create them. The Wills Act made 
words of inheritance unnecessar}^ to pass a fee simple and 
made the will include lands subsecjuently accjuired, which it 
had never done before. The will was made to include all 
property, contingent, executory and future interests, and 
rights of entry and copyholds. Before this act a devise of 
land passed only leasehold and copyhold if the testator had 
no freehold at the time of the will.^ A devise of real estate 
without any words of limitation passes the whole of the 
testator's interest.^ A devise of real estate to a trustee or 
executor will give him the whole interest of the testator, un- 
less an express or implied smaller estate is given him. By 
the Land Transfer Act (1897) real estate is treated like 
chattels real and terms of years in land, and does not pass 
directly to the devisee, but only after transfer from the per- 
sonal representative, who will have power to sell the lands 
for the payment of the testator's debts. The construction 
of wills is " limited only by the possibilities of language." ^ 
The power of becjuest is now free. " It is probable that at 
the present day, the amount of property that passes by de- 
scent in the course of any year is comparatively small." '' 

1 Jenks, op. cit., p. 362. ^ Ibid., p. 366. 

3 Ibid., p. 192. 



415] OWNERSHIP IN ENGLAND 71 

Yet intricate settlements have long prevented freedom 
of property devise. "A settlement is any instrument or in- 
struments by virtue of vv^hich an interest in land stands 
limited to or in trust for any person by way of succession." ^ 
Its object is to limit the successive legal interests in land 
and so provide for the members of a family, usually pre- 
ferring males ; or a personal settlement is one in which 
property is treated as an instrument for providing a cer- 
tain amount of income. A settlement is a successful evas- 
ion of the rule against perpetuities. But even these re- 
strain alienation only by custom. The Settled Land Acts 
(1856-1882) undertake to make all settled land subject to 
alienation. The tenant in tail may sell the land, exchange 
or partition to lease; he may dedicate it to a public use, 
or mortgage it or effect improvements out of any capital 
arising from sale of settled land." This is almost abso- 
lute ownership, although all the persons entitled under the 
settlements are protected. 

The heir as well as the testator has gained greater free- 
dom. He is no longer a universal successor to all the 
obligations of his ancestor. He is disentangled from the 
ancestral personality. But as late as a century after the 
conquest the heir was bound to warrant the reasonable gifts 
of his ancestor to grantees or their heirs, and the liability 
was not limited to the amount of property inherited from 
the same source.* In Bracton's time he was bound only 
to the extent of the property that descended to him.^ But 
the heir's persona or representation of his ancestor has 
for centuries been confined to land."' By the time of Ed- 

1 Jenks, op. cit., p. 313. - Ibid., p. 50. 

3 Holmes, Common Law, p. 347. 

* Pollock and Maitland, op. cit., ii, p. 343. 

'"^ Holmes, op. cit., p. 350. 



72 DISTRIBUTION OF OWNERSHIP [416 

ward III the executor took the place of the heir in the 
collection and payment of debts. 

Recent acts have established still more clearly the char- 
acter of private property in land. It has been proposed to 
abolish primogeniture as a rule for intestate succession. 
The crown's right to forfeiture (except for outlawry) was 
abolished in 1870. Outlawry in civil cases was abolished 
in 1819, forfeiture for waste in 1833, the forfeiture for 
attempted alienation by feoffment of an estate greater 
than that of the alienee, and for alienation to an alien, 
in 1870. By the common law only co-owners by inherit- 
ance could partition.^ By statutes (1539) joint tenants 
and tenants in common, or joint tenants for life or for 
years were given the right to enforce partition.^ The 
Married Woman's Property Act gave a married woman the 
same right as a single woman to acquire, hold, dispose by 
will or otherwise, without the intervention of a trustee. 

The equitable interest in lands by which legal burdens 
were escaped has been gradually subjected to legal burdens. 
By the Intestate Estates Acts (1884) equitable interests are 
made to escheat in the same way as the legal estate. 

In theory nothing in England is unowned individually. 
" Strictly speaking the right to be even on a high way is 
limited to the purpose of passing and repassing." ^ Even 
the air is owned. One cannot, technically, go over the land 
in a balloon without consent.'" The land belongs to the 
owner to the heights above and to the depths below. 

Although a bold effort has been made to see how land 
ownership has been freed to approximate what is usually 
understood by private property, the existence of trusts and 
building settlements under which so much land is held 

1 Jenks, op. cit., p. 350. - Pollock, Land Laivs, p. I3- 

3 Ibid., p. 16. 



417] OWNERSHIP IN ENGLAND 73 

makes it scarcely intelligible to speak of a regime of private 
property. It is tendency to private property. 

In all European countries before the Revolution the land 
systems were stamped with feudalism. On August 4, 1789 
serfdom was abolished in France. In Germany in 1807-11 
serfdom was abolished, free purchase and sale of land was 
granted and permission to break entails was given. Peas- 
ants were made complete owners by the cession of one-half 
or one-third of their holdings. Austria abolished the whole 
feudal regime in 1848. This illustrates the general ten- 
dency in Europe. Private property in land became a fami- 
liar conception. This was an accompaniment of the de- 
cline of monarchy. " Down to as late a period as i860, at 
least, the tendency of land legislation was all in one direc- 
tion. This was toward making land an object of individ- 
ual and uncontrolled ownership of free contract and free 
disposal, toward making it the object of possession and 
exchange in just the same way as a piece of furniture, a 
horse, money, or any other article at the disposal of its 
owner. Within a period of three-quarters of a century the 
medieval bases of land holding had been destroyed and an 
individualistic form of tenure substituted; land had been 
brought into the category of personal ownership. The laws 
of the middle of the century, moreover, over all Europe 
seemed to tend toward a further development of the char- 
acteristics of the new system." ^ 

While land was becoming free, individual ownership of 
commercial and industrial privileges also developed. The 
industrial unification which produced the gild continued in 
national control of commerce and industry, which deprived 
the gilds of municipal powers, of social obligations and the 

^ Cheyney, E. P.. "Recent Tendencies in Land Tenure," in Annals 
of the Ameyican Academy, Sept., 1893. 



74 DISTRIBUTION OF OWNERSHIP [^jg 

determination of apprentice laws. Edward VI confiscated 
the property of religious and social gilds ; the statute of ap- 
prentices (1563) took the regulation of employment from 
the crafts. The gilds were effete in the time of Elizabeth.* 
New monopolies were taking their place. The queen in 
the exercise of her " prerogative, the choicest flower in her 
garden " granted to favorites monopolies in the trade of 
everything from dried pilchards and ox-shinbones to Green- 
land whales and the Spice Islands. Two hundred men had 
live-sixths of the foreign trade of England." When the 
queen was aiding Hawkins to dispose of cargoes of slaves 
by the loan of the Jesus and the use of a hundred men well 
armed to encourage the Spanish to buy, it was inconceivable 
that commerce could be a private property. Political func- 
tion was attached to commercial ownership as to manorial 
lordship. The Italian monopoly of the tin mines of the 
thirteenth century, the Fraternity of St. Thomas a Becket 
(1358), which had a monopoly of English wool at Bruges, 
and became the Merchant Adventurers, the great regulated 
companies, later the joint stock companies, like the East 
India Company (T600), in short all of the great companies 
of several centuries had been granted, had acquired or had 
sought monopoly. They were partnerships with the gov- 
ernment much as the continental Hanseatic League had 
been an imperhmi in imperio. 

The right to possess property in the earlier trading com- 
panies was nominally somewhat freer than that in the gilds. 
Any merchant might be admitted, subject to exorbitant 
fines. But the trading in the regulated companies, like that 
under the gilds, was individual under the rules. The fail- 
ure of individual traders made necessary the joint stock or- 

' Cmmiiigham, Growth cf Industry and Commerce in England, p. 45. 
'•■ Hume, quoted by Baldwin. Modern Political Institutions, p. 165. 



419] OWNERSHIP IN ENGLAND y^ 

ganizations. Unlike modern corporations, these companies 
forbade their members to have membership in other com- 
panies. 

The rig-ht to the privileges of these companies was also 
burdened with the religious duties of the corporation to its 
servants, such as taking to the Spice Islands the craft gild 
custom of morning and evening prayers — a sort of " wel- 
fare work," probably not without an eye to the commercial 
advantages of sobriety. A more serious limitation was the 
centuries of minute government regulation. Political unity 
was not exercised in the guarantee of individual liberty, un- 
til it had secured the strength of the realm, through the 
effective regulation of commerce and industry. The for- 
eign trade was subject to the necessity of keeping the 
bullion at home. The succeeding policy of keeping the 
balance of trade at home also prevented freedom. Pro- 
tection to home industries required sumptuary laws as to 
consumption. Thus serge was substituted for silk by law 
for the covering of buttons and working of button holes 
(1738).^ The regulation of one industry even for its pro- 
motion was destructive of other industries, and while de- 
veloping commerce, made uncertain the conditions of own- 
ership. When the ancient municipal commerce of the four- 
teenth century had grown to national commerce, when a 
stable commercial realm had been erected and before its 
regulation had been relaxed, a new stage of liberty to own 
had developed. Opposition to personal monopolies was 
effectual in an act of 1623. They were re-established by 
Charles I ; but all monopolies not confirmed by parliament 
were practically abolished in 1689. At the beginning of 
the eighteenth century, while special charters were still 
necessary, so many companies were chartered as to indi- 
^ Cunningham, op. cit., p. 338. 



76 DISTRIBUTION OF OWNERSHIP [420 

cate liberty. In 1720, for example, two hundred com- 
panies were chartered, including one for Making Salt 
Water Fresh. To trace fully the liberty to own freely 
commerce and industry, it would need to trace the develop- 
ment of political and intellectual liberty, the modern free- 
dom of interest, the legalizing of the negotiability of notes, 
a practice developed b}'- the merchants, the stability of the 
currency, the establishment of the Bank of England in 
1694; the introduction of fire and life insurance (1680- 
1700) ; the appearance of thousands of independent mer- 
chants and adventurers ; the increase of skill and provi- 
dence, and of " capital," both real capital and money and 
credit, by which the modern "fluidity of property" was pro- 
duced. Money is the destruction of the " static " state and 
a necessity to the ownership of " incorporeal hereditaments." 
Trade in money assimilates all property to chattels. Stock 
jobbing was already " scandalous " at Defoe's time. The 
South Sea Company (171 1-48) sold shares of the par 
value of 100 at 1200, which led to a bill to suppress " the 
infamous practice of stock jobbing." The mercantilist policy 
and the industrial regulations were outgrown by the in- 
dustrial development which they themselves had wrought. 
The Act of 1834 enfranchised the factory towns. The regu- 
lation of commerce and the prohibition of colonial manu- 
factures was changed by the loss of the American colonies. 
Freer trade was secured in the colonies by Huskisson. 
Commercial treaties (1823) were made in abrogation of 
hostile tariffs and protective rules. The tariff was removed 
in 1842 and the corn laws were abandoned in 1846. 

Property in commerce was becoming as free as property 
in land and men had already been. Thus Pitt in 1783 op- 
posed the proposition to take the government of the 30,- 
000,000 people of India away from the East India Com- 
pany as an " inequitable confiscation of property." This 



42 1 ] OWNERSHIP IN ENGLAND yy 

illustrates the modern belief in the immemorial sanctity of 
property. The first result of the liberty to own industry 
and trade was naturally a predominant form of ownership 
less corporate in character than that under gilds and mono- 
polies. But the nature of co-operative production produces 
co-operative forms of ownership. It might be said that the 
liberty of ownership of trade culminated in the individual 
ownership of factories and that the development of cor- 
porations should be considered not as liberty of ownership, 
but as limitation of ownership. But if there is a general 
period of liberty to own all the possible forms of ownership, 
the liberty to own shares in corporations must be embraced 
in it. Modern corporations were fully established in the 
nineteenth century. The earlier corporate forms as shown 
already, were not definitely limited in membership and 
were not distinguishable from political sovereignties ; the 
Hcta persona could not come out of the canon law to be 
applied to technical corporations, until the gilds and mono- 
polies had been crystallized to select and closer bodies. 
They must approach nearer to individual activity before 
receiving individual freedom. This growing freedom re- 
ceived aid in the acts (1825-7) conceding the right of 
workingmen to organize. Many associations without 
charters were in business under company names. Many 
great banking institutions existed without incorporation. 
The first general incorporation law was passed in i8z].4, 
the Joint Stock Companies Registration Act requiring re- 
gistration of purpose, capital, subscription, duration and 
other particulars. The members, however were under the 
same liability as an ordinary partner. By subsequent acts 
(1856-62) limited liability companies may be formed. Be- 
tween 1862 and 1890, 35,000 companies were incorporated. 
The internal disintegration resultant on the development 
of strong national unity had resulted in the modern concep- 



^8 DISTRIBUTION OF OWNERSHIP [422 

tion of private property in all things capable of being owned. 
At the beginning of the nineteenth century England was 
filled with want and misery and child labor. Labor's im- 
portance relatively to capital declined. Economic respon- 
sibility was detached from economic opportunity. It is not 
possible to assert the relation of these facts to each other. 
But reference to statistics is inconvenient to the individ- 
ualistic theory of a regime of private property. 

The mythical period of laisscz faire was somewhere about 
the transition from the older limitation to a new limitation, 
a new tendenc}^ to estate. It may be examined whether 
the modern liberty of property contained or contains the 
embryo of its successor. 

The struggle of the underworld must be allowed some 
influence in both the liberation and the subsecjuent limita- 
tion of property. Thus the demand of the peasants (1381) 
" that all men from henceforth might be enfranchised to 
buy and sell in every county, cit}^ borough, town, fair, 
market or other place within the realm of England," was 
prophetic of liberty ; while the complaint of John Ball looked 
still further: "A ye good people the mater gothe not well 
to pass in Englande, nor shall not do tyll everything be 
common and that there be no villayns nor gentylmen." ^ 
The Christianity of Wycliffe was somewhat influential in 
the mitigation of property. 

Slavery was not extensive because it was unnecessary.^ 
The same reason allowed its complete limitation before the 
modern limitation of the other forms of ownership began. 
Queen Elizabeth, wdio exercised the royal prerogative of 
beating her maids of honor black and blue and sold slaves 

1 Froissart. quoted by Jusserand. English IVayfaring Life, p. 275. 

2 Cf. supra, p. 60. 



423] OWNERSHIP IN ENGLAND yg 

abroad, set free the bondmen at home/ Charles II abol- 
ished slavery by statute. The slave trade was prohibited 
in 1807. In 1833 all slaves in British territory were eman- 
cipated with £20,000,000 indemnity. 

The first freeing of the land while excluding inferior 
tenants, did not result in the immediate concentration of the 
land in the hands of the lords. Much of the enclosure 
was by small freeholders. The wars of the Roses depleted 
the nobility and aided in the rise of the yeomanry. Bui 
after 1688 the landed gentry were politically supreme and 
crushed the yeomanry by the unhindered exercise of private 
property rights. The yeomen could not meet the system 
of large farming, nor defend themselves against the un- 
lawful enclosures by the rich. The poor law often com- 
pelled them to contribute through the rates to the support 
of the tenants of the rich neighbor." When he was not 
otherwise dispossessed, the small farmer was ruined by the 
low prices and by the greater proportionate cost of his en- 
closure as compared to the large farmer." And the peas- 
ant whose allotment in a common might be an acre was 
compelled to sell both his acre and his cow to his rich 
neighbor.* " The English yeoman of the days of Henry 
V and Queen Elizabeth as a class has disappeared en- 
tirel}^" ^ Concentration of wealth is proof of liberty and 
prophecy of limitation. It is evidence that ownership is 
untrammeled, for property has much greater accumulative 
powers than men have. There were perhaps 200,000 land 
owners in the eighteenth century. A hundred years later 
there were perhaps 30,000. '^ Concentration of ownership 
need not immediately constitute a limitation of the form 

1 Brodrick, op. cit.. p. 176. - Gibbins. Industry in England, p. 279. 

3 Cunningham, op. cit.. p. 477. * Ibid., p. 487. 

5 Brodrick, cp. cit., p. 164. "^ [hjd., pp. 156-7. 



8o DISTRIBUTION OF OWNERSHIP [424 

of property, but it becomes a limitation of its substance, 
since the people who are dependent on the land and who 
give it value continue to live and become incidents of own- 
ership that presage future customary claims. If it should 
be found that the attained equilibrium of classes cannot be 
widely disturbed without impunity then private property 
seems to be yielding to estate. It seems impossible to regard 
private property in land as an unchangeable institution if 
there is truth in Brodrick's statement of twenty-five years 
ago that one one hundred and seventieth of the population 
owned one acre each, that four-fifths of the land was owned 
by 4000 persons.^ It seems more intelligible to explain 
the present land system as an advance in some new form 
of estate, if it is true that the proportion of land holders 
was ten times greater at Domesday than in 1880." More- 
over the real property law has remained stamped with feud- 
alism. " From the time of the introduction of methods of 
breaking the entail to the institution of family settlements, 
the ownership of land was more absolute and its disposi- 
tion less restricted than it had been for two centuries be- 
fore or than it has been since." ^ Intricate settlements now 
take the place of the older entail, until a much larger area 
is under family settlements than under free disposal.'' 
There is less liberty of disposition than there was in the 
seventeenth and eighteenth centuries. The result of time 
and change, with the survivals from the successive periods, 
make the land system " a structure of the most complex 
and heterogeneous kind." 

Minute attention cannot here be given to the numerous 
rights in alieno solo, known as servitudes, such as " com- 
mons " or rights of pasturage, gathering acorns, cutting 

1 Brodrick, op. cit., p. 164. 2 Jjyid., p. 172. 

^ Ibid., p. 2>^. ^ Ibid., p. 32. 



425] OWNERSHIP IN ENGLAND gl 

turf, fishing or estovers, cutting timber and furze, fran- 
chises, advowsons, tithes, annuities, sporting rights, water- 
courses, Hghts, rights of support — all rights which limit 
ownership for individual and social benefit in the land to 
which they are attached. The Statute of Limitations shows 
the nature of ownership as a social institution. A man may 
not " sleep upon his rights " and then dispossess the actual 
possessor. No entry, distress or action shall be brought 
to recover any land or rent, but within twelve years after 
the right to bring the same shall have accrued to the per- 
son seeking to enforce it. New rights of tenants have been 
developed by recent efforts to ameliorate their condition. 
By the Agricultural Holdings Acts (1851-1883) the ten- 
ant's improvements on the property are secured to him. 
The Allotment Acts of 1887 ^^'^^ 1894 also allow local au- 
thorities to buy land by agreement, if possible, or by au- 
thority, if necessary, to sublet to small tenants. The policy 
of enclosing commons has been reversed since 1865. 

Measures have been taken to relieve the oppression 
wrought upon the Irish by private property in land. Of the 
various legislative enactments dealing with Ireland between 
the years 1816 and 1842, no fewer than thirty-two were 
in favor of the landlord while legislation entirely neglected 
the tenant.^ The idea of absolute ownership prevailed in 
the government's dealings with land, in the twenty years 
after 1845.' It was sought to compensate the tenant for 
starvation, disease, and "clearances" by consolidating farm- 
ers, and to discourage his habit of shooting landlords, with- 
out disturbing the absolute property right of the owners. 
A commission proposed to determine what compensation 
should be given the tenant for work was killed by the cry 

^ Taswell-Langmead, op. cit., p. 641. 

2 See Dunning, W. A., Political Science Quarterly, vol. 7, p. 504 et seq. 



82 DISTRIBUTION OF OWNERSHIP [426 

of "confiscation." The next twenty years secured legal 
recognition of the tenant's right. Gladstone's Landlord 
and Tenant Act (1870) secured property rights for tenants, 
fixed tenure and compensation for eviction. The landlord's 
right to demand any rent he pleased was not yet disturbed. 
In more recent years efforts have been made to turn the 
tenant into a proprietor. The Land Law of 1887 secured 
the free sale of tenant rights, a secure term of fifteen years, 
renewable forever and fixed rent during a term on condition 
of due payment, no waste and no subletting. Then there was 
judicial reduction of rents from 1881 to 1886 of 18.2 per cent. 
Compulsory expropriation of land has more recently been 
resorted to. By the x^shbourn Acts ( 1885-7) the whole 
amount of the purchase price was advanced to the tenant 
with repayment in forty-nine years, interest 4 per cent. By 
the law of 1903 $500,000,000 was to be loaned to Irish 
farmers at 3)^ pei" cent. 

Limitation of the use of industrial privileges has been 
so continuous that it is not possible to fix any beginning of 
the increasing limitation of the present. The personality 
of the servant, the chief resource of industrial ownership, 
has been recognized in many ways. Before the doctrine of 
free contract became supreme in English political philo- 
sophy, legislation in behalf of labor was already develop- 
ing. In 1802 the first child labor law was passed. " From 
this humble beginning the protection of the state was gradu- 
ally extended to " young people," to the textile industries 
(1833); to women (1844); then to all large industj-ies 
(1854) then to the smaller workshops generally (1867) 
and finally blossomed out into full fledged factory acts reg- 
ulating industry generally in behalf of the health and 
safety of the laboring population. Under the individual- 
ism of the strong, labor unions of the weak inevitably 
gained in strength and struggled for the vestiges of status 



427] OWNERSHIP IN ENGLAND 83 

against the insecurity of an age of contract. The neces- 
sity for doing something about the distress of labor led 
to the repeal of the statutes against combinations, thus 
giving some legal status to the influence of labor unions. 

The individual liberty made possible by political unity 
reacted on that unity with measures of equality, such as 
the Habeas Corpus Act, right of petition, destruction of 
governmental absolutism, the ascendency of the House of 
Commons after ages of struggle wkh autocracy. As unity 
became absolute, absolutism became corporate. Under this 
diffused unity, economic liberty grew. The new centraliza- 
tion perhaps presages some new and better adjusted owner- 
ship, private property shorn of some of its anti-social power, 
possibly the national middle class hereditary estates sug- 
gested by Gneist.^ 

1 Quoted by Taswell-Langmead, op. cit., p. 643. 



CHAPTER V 
Liberty to Own Slaves in America 

Liberty of ownership, private property, in America as 
in England was greatest with the completion and demo- 
cratization of political unity under the influence of the senti- 
ment best expressed by John Woolman : ^ " I believe that 
liberty is the natural right of all men equally." It is un- 
necessary to detail the establishment of the constitution and 
of universal suffrage, a political privilege essential to lib- 
erty of ownership. Franklin said to those who have no 
landed property, " the allowing them to vote for legislators 
is an impropriety."" Hamilton said: "Those who have 
no property have no will of their own." ^ Calhoun said: 
" There has never yet existed a wealthy and civilized so- 
ciety in which one portion of the community did not in 
point of fact live on the labor of the other." " They but 
repeated Plato and Aristotle, who thought virtue (ability) 
impossible without leisure. Hence those who labor to live 
are not fit to govern. Lincoln modernized this sentiment : 
"A Yankee who could invent a strong handed man without 
a head would receive the everlasting gratitude of the mud- 
still advocates." However unreal the right of property may 
be to the propertyless, its nominal concession to all men was 
completed by the grant of civil and political rights to "' the 

1 Sermon, p. 9. ~ Merriam, American Political Theories, p. 84. 

3 Ihid., p. 239. 

84 [428 



429] LIBERTY TO OWN SLAVES IN AMERICA 85 

strong handed man without a head." When however this 
point had been reached, the extension of the suffrage ceased 
to be a guarantee of private property of the completest form 
and became a restriction. The extension of hberty is its 
own restriction. 

Although private property in slaves had not come to be 
held immutable before its national guarantee yet it had 
long been a virtual right of Englishmen in America. It 
was found chiefly in the south, since in the north as in 
England, the limitations of nature made possible the ap- 
propriation of the services without the appropriation of the 
servant. Goldwin Smith says : ^ " The sole source of slav- 
ery was in the desire of Europeans in a languid climate to 
have the work done for them instead of doing it them- 
selves." George Washington complained that the farm- 
ers actually had to work beside their servants to make a 
profit. An English slave agent in Georgia said : " It is as 
clear as light itself that negroes are as essentially necessary 
to the cultivation of Georgia as axes, hoes or any other 
utensil of agriculture." " Had not the Dutch sailed up the 
James with African creatures capable of domestication, it 
is probable that the incipient form of slavery known as in- 
denture might have become a system of slavery, by the use 
of penalties and other devices for extending the time of 
indenture, such as were already in use. Indeed the first 
colonists were themselves the victims of the rapacity of 
the London Company. Dreaming of gold they found 
chains, marching to their daily work in squads under the 
lash and subject to penal servitude for petty ofifences.^ In 
1 619 one hundred poor boys and girls were taken from 

^ The United States, p. 221. 

2 Burghardt-DuBois, Slave Trade, p. 8. 

3 Ballagh, White Servitude in Virginia, pp. 24-6. 



86 DISTRIBUTION OF OWNERSHIP [430 

the streets of London to be bound to the tenants for a 
term of years, at the end of which time they were to be- 
come tenants at halves.^ Men were transported for crime 
or were inveigled by false promises to sail for America there 
to be bound out for passage if they found no place. Be- 
tween 1664 and 1 67 1 fifteen hundred a year of these " kids " 
were sent to Virginia." In 1683 there were in Virginia 
3000 slaves and 12,000 servants.^ This system spread 
through all the colonies. By the infliction of penalties the 
term, usually from two to ten years, might be prolonged to 
perpetual servitude. Thus in Virginia runaways were fined 
double time. Many of these servants were transported con- 
victs, frequently political, whose blood, perhaps, still flows 
in American veins. " Perhaps fifty thousand convicts were 
sent to nine American colonies." * These servants were 
wont to run away. "Ran away from Rev. D. Magill, Upper 
Marlborough. Maryland, a servant clothed with damask 
breeches and vest, black broad cloth coat, broad cloth cloak 
of copper color, lined and trimmed with black and wearing 
black stockings." "' One Sarah Wilson, a maid of honor to 
the queen, stole some valuable jewels and was transported 
to Maryland in 1771 where she was sold. She escaped 
and assumed the title of " Princess Susanna Caroline 
Matilda, sister to our sovereign lady the queen." Hav- 
ing courtly clothihg and jewels and the queen's picture, the 
gentlemen of the farther south, to which she fled, gave her 
the homage and the loans due a princess, until her master's 
advertisement and the resulting hue and cry discovered the 

^ Ballagh. op. cit., p. 29. 

- Ibid., p. 26. 3 Ibid., p. 93- 

* Butler, " British Convicts Shipped to American Colonies," in Amer- 
ican Historical Review, ii, p. 12. 
° Ibid., p. 29. 



43 1 ] LIBERTY TO OWN SLAVES IN AMERICA gy 

fact that her serene highness was after all only vagabond 
property/ One Henry Justice, Esquire, of the Middle 
Temple, stole from the library of Trinity College, Cam- 
bridge, " a Field's Bible, with cuts and common prayers, 
value 25I., Newcastle's Horsemanship, value lol., several 
other books of great value, several tracts cut out of books, 
etc." " Being brought before the court he desired them as 
they had discretionary power either to transport or to burn 
in the hand, etc., he might not be sent abroad, which would 
first be a great injury to his children and his clients with 
several of whom he had great concerns ; secondly for the 
sake of the university. He had a number of books belong- 
ing to them, some sent to Holland, and if he were trans- 
ported he could not make restitution. As for himself he 
would rather go abroad having lived in credit before this 
unhappy mistake." He was transported. Possibly he be- 
came the tutor of George Washington, who was educated, 
according to Boucher, by a convict servant whom his father 
bought for a school master.^ 

This temporary form of wealth was publicly encouraged 
in various states, by bounties, as in Massachusetts (1709) 
and by the sale of convicts. Thus white criminals were 
sold from colonial New York to the West Indies. In 1669 
Governor Lovelace ordered Marcus Jacobson to be sold as 
a servant to Barbadoes. He had been tried by a special 
commission and sentenced to death, but this sentence w^as 
softened to whipping, branding, imprisonment, transporta- 
tion and slavery.^ New England Quakers were sold to the 
Barbadoes and elsewhere. 

Many of the incidents of property attached to this partial 

1 Butler, op. cit., p. 29. 

2 Ibid., pp. 26-7. 

^American Historical Association Reports, 1890, p. 88. 



88 DISTRIBUTION OF OWNERSHIP [403 

ownership. Servants could not get married without the 
owner's consent. The right of the servant to have goods 
was abridged. The saddle does not belong to the horse; 
nor the bell to the cow. As a yoke is put on a fence- jump- 
ing cow, so in view of the peculiar " fluidity " of this 
property irons were put on runaway servants. As horses 
are taught by whipping not to kick, so servants were whipped 
for running away. As sheep in the mountain ranges are 
daubed with red paint to establish their owner's right, 
so servants might be branded with their master's mark. It 
is said that any one might lawfully kill a bound servant 
who ran away.^ In Pennsylvania an indented servant could 
be sent to jail — a sort of storage warehouse — by his master 
for an indefinite time. The right to sell such property was 
early established. George Sandys, the treasurer of Vir- 
ginia, in 1623 was forced to sell the only remaining eleven 
servants of the company for mere lack of provisions, and a 
planter sold seven men on his plantation for one hundred 
and fifty pounds of tobacco." Thereafter servants were 
rated in inventories of estates and disposed of by will and 
deed with other property. The servants could be levied on 
for the debts of the master equally with his g^oods and 
chattels. This property, being of less value than slaves, was 
used up with less care and the condition of white servants 
was often worse than that of black servants who were worth 
saving. VVm. Eddis, surveyor of customs of Annapolis, 
said in 1770 that since negroes were a property for life, 
the death of slaves in the prime of youth and strength was a 
material loss to the proprietor ; they were therefore in almost 
every instance under more comfortable circumstances than 

1 Talcott Williams, Labor a Hundred Years Ago, pp. 5-6, and Mc- 
Cormac, White Servitude in Virginia, p. 57. 
~ Ballagh, op. cit., p. 43. 



433] LIBERTY TO OWN SLAVES IN AMERICA 89 

the miserable European, over whom the rigid planter exer- 
cised an inflexible severity/ They w^ere strained to the ut- 
most to perform their allotted labor. But there were restric- 
tions on this property. In case of the abuse of a servant 
by his master the court could sell the servant away from 
his master. In 1662 private burial was forbidden in order 
to prevent the whipping of servants to death. In 1765 the 
practice of binding illegitimate children of servants for thirty- 
one years — a most important step in this incipient slavery — 
was declared by the legislature to be an unreasonable sever- 
ity to such children. In North Carolina masters were fined 
£5 for freeing sick servants from obligations, or discharg- 
ing them without trying to heal their malady." In 1662 
an act was passed in North Carolina to give the servants 
" propriety in their own goods and by permission of their 
masters to dispose of the same to their own advantage." ^ 

It was not however due chiefly to legal restrictions but 
to the economic superiority of black slavery that indenture 
was superseded, and definitely abolished by various state 
constitutions during the next century. Possibly also the 
passing of feudal incidents on land aided in the extension of 
slavery and substituted this for the feudal ownership of 
men. Thus in Georgia, upon the establishment of fee sim- 
ple in land and unrestricted slavery, the population increased 
from 2,000 in 1750 to 10,000 whites and 8,000 negroes in 
1766.* Governor William Berkeley reported in 1670 that 
there were 2,000 black slaves to 6,000 Christian servants.^ 
In 1790 there were 700,000 slaves of whom 40,000 were in 

^ Hart, American History Told by Contemporaries, vol. ii, p. 309. 

2 Bassett, Slavery and White Servitude in North Carolina, p. 250. 

3 DuBois, op. cit., p. 3. 

4 Banks, Land Tenure in Georgia, p. 14. 
^ Hart, op. cit., i, p. 240. 



90 DISTRIBUTION OF OWNERSHIP r^^^ 

the north. ^ Thus this form of ownership attained to the 
greatest freedom. Negroes were house servants and farm 
hands in New England and New York, Hved under " a mild 
serfdom " in Pennsylvania and Nev/ Jersey, under an aris- 
tocratic caste system in Virginia and Maryland, and further 
south were more completely beasts of burden, for there in 
time their spendthrift masters subjected them to such legal 
punishments as burning, crucifixion and starving." The at- 
tachment that sentimental owners feel for things they have 
long owned, particularly for live things, was formed in a 
peculiar degree for many slaves. And the chattels often 
returned a human affection. They adopted and emphas- 
ized the religious sentiments of their masters, and through 
the devotion therein inculcated they strengthened their own- 
ers' claim upon themselves, as a dog cannot be driven away 
from its master. 

Slavery was based on custom. The common and statute 
law of England gave it no legal existence. In 1772 in 
England the " Somersett decision " disallowed a claim to a 
slave who had been turned out when sick and then re- 
claimed, because the law did not recognize " so high an act 
of Dominion." ■'' The colonial charters are silent. The se- 
curity of slave property was not attained at once. Thus 
Samuel Sewell said in 1700:* "These Ethiopians, black 
as they are, seeing they are sons and daughters of the first 
Adam, the brothers and sisters of the last Adam and the 
offspring of God, they ought to be treated with a respect 
agreeable." There was much of such opposition. The 
Germantown Quakers as early as 1688 registered a vote 
against the " traffic in menbody." '' New Jersey freeholders 

1 Thomas. The American Negro, p. 7. - DuBois, op. cit., p. 6.. 

3 Lalor's Encyclcpcdia. " Slavery." 

* Hart, op. cit., i. p. 297. "' Hart, op. cit., ii, p. igi. 



435] LIBERTY TO OWN SLAVES IN AMERICA c)l 

had declared (1676) that ah and every person and persons 
inhabiting the said provinces shah as far as in us h'es be 
free from oppression and slavery.^ Duties on imports were 
frequent in'all the colonies throughout the eighteenth century. 
Pennsylvania (1712) prohibited the slave trade, but the act 
was promptly disallowed b}^ England.^ South Carolina 
(1713) imposed a heavy duty on the trade, upon the dis- 
covery that " the number of negroes do extremely increase 
in this province and through the afflicting providence of God 
the white persons do not proportionately multiply, by reason 
whereof the safety of the said province is greatly endan- 
gered." ^ In consequence of Cato's insurrection that pro- 
vince in 1 71 7 prohibited the trade. The Privy Council dis- 
allowed it. Oglethorpe (1733) prohibited slavery itself as 
being ag^ainst the laws of Georgia and the fundamental laws 
of England.* New England morality was inexpensive; 
slavery did not pay. In the eighteenth century the trade 
was encouraged — ^with the other colonies — by an entire re- 
bate, upon re-exportation, of the restrictive duty.' 

Notwithstanding resolutions by the Continental con- 
gresses and southern conventions, " the opprobrium of in- 
fidel powers " continued to flourish and the Northwest or- 
dinance (1787) made the peculiar provision that property 
that was owned in one part of the country might be owned 
in another, while the constitution secured the trade until 
1808. Opposition began to center in the north and the con- 
stitutions of the New England states and Pennsylvania had 
abolished slavery outright or provided for its gradual ex- 
tinction. The southern statesmen at first considered it 
a temporary evil. Jefferson said : " I tremble for my coun- 

1 DuBois, op. cit., p. 24. - Ihid., p. 22. 

2 Ibid., p. 10. -^ Ihid., p. 24. 
■' Ibid., p. 30. 



92 DISTRIBUTION OF OWNERSHIP [405 

try when I reflect that God is just and that his justice can- 
not sleep forever." 

But civil recognition of the existing rights of ownership 
had long been increasing. The civil law rule partus se- 
quitur ventrem was adopted by statute in Virginia in 1662 
and later in other colonies. Maryland in 1663 had declared 
that negroes should serve durante vita and their children 
also.' Virginia in 1670 declared that servants not Chris- 
tians imported by shipping should be slaves for life. South 
Carolina passed an act in 1690 for the " better ordering of 
slaves," in 1712 formally legalized slavery and in 1740 
adopted the civil law rule. From this early time legal 
recognition grew. 

After the Revolution all the states prohibited the slave 
trade without seriously hindering its increase. The first 
national act to prohibit the carrying on of the slave trade to 
any foreign place or country and fitting out slavers in the 
United States was passed in 1794. In 1800 it was for- 
bidden to have any interest direct or indirect in slave ships. 
In 1803 South Carolina repealed her prohibitive law and 
legalized the growing slave trade." In 1804 North Caro- 
lina passed resolutions proposing that the states should give 
Congress power to prohibit the trade. This was seconded by 
Massachusetts, Vermont, New Hampshire and Maryland.^ 
Under the constitution the trade was prohibited March 2, 
1807. Thereafter 15,000 slaves were annually imported 
into the southern states.'* The punishment for equipping a 
slaver was a fine of $20,000 and forfeiture of the ship; for 
transporting negroes there was a fine of $5,000 and for- 
feiture of the negroes : while for knowingly buying imported 

1 Lalor's Cyclopedia, loc. cit. ^ DuBois, op. cit., p. 16. 

3 Ibid., p. 95. 

•* Wilson. History of the U. S., vol. i. p. 97. 



437] LIBERTY TO OWN SLAVES IN AMERICA ^3 

negroes there was a fine of $800 for each offense and for- 
feiture of the negro. ^ It was sought to make the law ef- 
fective by giving one-half of the fines and forfeitures to 
informers. An effort to have the slave trade made a felony 
punishable with death was defeated because of the south's 
well grounded objection, that it could not be enforced." In 
1819 an act empowered the president to use cruisers on the 
coasts of the United States and of Africa to suppress the 
slave trade, one-half of the proceeds to go to the captors.^ 
This seemed to encourage the trade. Slave trading was 
made piracy and punishable with death. In 1837, 200,000 
slaves were brought in.* The trade under the stars and 
stripes was most active just before the war. Five hun- 
dred slaves were landed in Georgia in i860; and southern 
commercial conventions had been demanding a change in 
the federal law.' If misguided officers secured the crim- 
inals, they (the criminals) were pardoned by the president. 
Thus Jefferson pardoned one Topham twice. Madison re- 
mitted every penalty on fifteen vessels bringing in 683 ne- 
groes and pardoned four others convicted of importing 
slaves ; Monroe pardoned four men ; J. O. Adams seven and 
Jackson five.*' No man suffered the death penalty until 
Lincoln's time. While stealing free men in Africa was a 
" misdemeanor," slave stealing in America, especially to 
free them, was a heinous and perilous crime. One Captain 
Jonathan Walker in 1844 attempted to aid some Florida 
slaves to escape to a neighboring island. When captured 
he was compelled to lie in chains on the bottom of the 
steamer; at Pensacola he was put in a cell saturated with 

1 DuBois, op. cit., p. 104. 

2 Von Hoist, Constitutional History of the U. S., vol. ii, p. 318. 

3 DuBois, op. cit., p. 121. ' Ibid., p. 123. 

5 Ibid., p. 143. •* Ibid., pp. 128-9. 



94 DISTRIBUTION OF OWNERSHIP [438 

the blood of a criminal who had two days before committed 
suicide. He had neither bed, chair nor table and was 
chained to the floor. He had to stand in the pillory one 
hour, being pelted with rotten eggs, to pay as many fines 
as there were slaves stolen, to suffer as many terms of im- 
prisonment and to pay the costs and to be branded in the 
hand " S.S." He lay in prison eleven months with a heavy 
chain to his leg.^ North Carolina made it a felony pun- 
ishable with death to aid a slave to escape." Other na- 
tions had abolished the trade, an effort of England and the 
United States to combine for the suppression of the trade 
was frustrated by the unwillingness of the United States 
to allow the right to search American pirate ships. 

The internal slave trade had never been interfered with 
and the number of slaves had increased from 700,000 in 
1790 to 4,000,000 in i860, when slaves were at their high- 
est price, averaging $450 in value. "^ " Men were reared for 
the market like oxen for the shambles." * The headquarters 
of the trade were under the shadow of the capital, where a 
British visitor, on his way to the congress, saw herds of 
slaves in chains in the " metropolis of liberty." "''' 

While nominally opposing the trade, the acquiescence of 
the government was positively shown in many ways. Thus 
in 1790 Congress declared that it had no authority to inter- 
fere in the emancipation of slaves or in the treatment of 
them in any of the states. The " particularistic reaction " 
tended to limit governmental powers in the interests of the 
states. Liberty of the parts is a result of the unity of the 

1 McDougall, Fugitive Slaves, p. 42. 

2 Bassett, Slavery in N. C, p. 15. 

3 DuBois, op. cit., p. 162. 

4 Giddings, J. R., Speeches in Congress, p. 41. 

-'' Torrey, American Slave Trade (London, 1822). 



439] LIBERTY TO OWN SLAVES IN AMERICA g- 

whole. Private property gains thereby. During two de- 
cades after 1830 slavery was on the defensive; subsequently 
to the compromise of 1850 it seemed momentarily trium- 
phant. 

Congress (1820) gave the power in Washington to pun- 
ish slaves, men and women, on the bare back, up to forty 
stripes for trifling offences.^ By an act of 1836 free colored 
persons might be locked up if found on the street after ten 
o'clock." The United States engaged its forces in the 
Seminole War, (1832-9) which so far effected the restora- 
tion of slaves to their masters as to give color to the accusa- 
tion that it was a " great slave hunt." ^ In 1843 Congress 
passed a bill to relieve West Florida people whose slaves had 
been taken by soldiers. Georgia slave holders were paid 
$109,000 for slaves escaped to Florida, and $141,000 was 
added as compensation for " the offspring which the fe- 
males would have borne to their masters had they remained 
in bondage." ■* In 1846 the Wilmot Proviso, seeking to 
exclude slavery from the territories acquired from Mexico 
was beaten in Congress. In the political campaign of 1848 
the parties were silent on the controversy and in 1852 the 
leading parties both nominated candidates acceptable to the 
slave holders. An effort was made to preserve the balance 
of power in the compromise of 1850, by which California 
was admitted as a free state, the Mexican cession was left 
otherwise subject to the will of the settlers, the slave trade 
was abolished in the District of Columbia and a stringent 
fugitive slave law was passed by which the nation seemed 
committed to slavery. The idea of " squatter sovereignty " 
by which the western extension of slavery became possible 

1 Wilson. Slave Power, i, p. 304. - Ibid. 

3 Von Hoist. H., United States, vol. iii, pp. 304-7- 

* Wilson, op. fit., i, p. 454. 



96 DISTRIBUTION OF OWNERSHIP [440 

developed in the discussion of the admission of Oregon and 
in the Kansas-Nebraska Act of 1854. The Kansas con- 
stitution of 1857 in an article repeating that of Kentucky 
in 1850, declared " The right of property is before and 
higher than any constitutional sanction and the right of 
the owner of a slave to such slave and its increase is the 
same and as inviolable as the right of the owner of any 
property whatever." ' By the Dred Scott decision of 1857 
the Missouri compromise of 1820 was rendered unconstitu- 
tional, and slaves were declared to be not persons but prop- 
erty, which under the constitution could be taken anywhere. 
Buchanan was ready to give slavery new guarantees and ex- 
tension, to call on all states to repeal personal liberty laws, 
to extend the Missouri compromise to the Pacific, to dis- 
qualify for office all negro blood, to place slavery beyond 
the reach of constitutional amendments, to make it " eter- 
nal." Resolutions to this effect passed the House by a vote 
of 133 to 65 and the Senate by 24 to 12. Lincoln had 
" no objection to its being made express and irrevocable." 

Liberty of ownership required certain specific laws re- 
strictive of the liberties of the owned. The constitution 
and the machinery of government were employed to keep 
this property from using its legs. The first fugitive slave 
law provided that the owner or agent could bring the al- 
leged fugitive before any magistrate of a county, city or 
town corporate in order to obtain a decision ordering the 
return of the fugitive to the state from which he fled. 
While other property cases involving over $20 required a 
jury, any village judge could hand a man to lifelong slav- 
ery and accordingly the practice of kidnapping free negroes 
was encouraged. By the fugitive slave law of 1850 the 
machinery of the federal courts, commissioners, marshals 

1 Kentucky, 13 : 3. 



441 ] LIBERTY TO OWN SLAVES IN AMERICA gy 

and deputies could be set in motion for the recovery of slaves 
by the simple affidavit of ownership, and citizens were com- 
pelled, under penalty, to assist in the capture. The state 
constitutions, when not prohibiting emancipation, made 
compensation necessary. The southern constitutions pro- 
tected slavery in many other ways. Residence was denied 
to free negroes in some states. The Committee for the Dis- 
trict of Columbia reported : " In this district as in all the 
slave holding states in the union, the legal presumption is 
that persons of color going at large without any evidence 
of their freedom are absconding slaves and prima facie liable 
to all legal provisions applicable to that class of persons." 
Freemen suspected of being runaway slaves were sometimes 
sold as slaves.^ Virginia (1856), Louisiana (1859), 
Maryland (i860) provided laws for the voluntary enslave- 
ment of free negroes. 

The slave had no rights which the white man was bound 
to respect, certainly not the right to property, for his hut 
might be rifled with impunity of anything it contained, 
from waffles to wife. The civil code of Louisiana describes 
the negro slaver " One who is in the power of a master, 
to whom he belongs. The master may sell him, dispose of 
his person, his industry and his labor. He can do nothing, 
possess nothing, nor acquire anything but what must belong 
to his master." He had no right to life. Not only were 
fugitives hunted down like wild beasts, flogged by any finder 
or shot down on the spot, but in some states the master was 
not answerable for murder. Thus in South Carolina pun- 
ishing a slave to death was not a crime. ^ The negro was 
deprived of various duties of citizenship, such as military 
service. Intermarriage of races was criminal — and un- 

1 Von Hoist, Constitutional History, ii, p. 305. - Art. 35. 

3 Smith, Goldwin, United States, p. 51. 



98 DISTRIBUTION OF OWNERSHIP [442 

necessary. Education of slaves was frequently punished. 
Thus in Savannah it cost $30 to teach a colored person 
" slave or free," and if the teacher were colored, it cost $30 
and thirty-nine strokes of the lash.^ In Connecticut in 1833 
Prudence Crandall for teaching negroes was put in prison in 
a cell previously occupied by a condemned criminal ; and 
in 1835 a negro school in New Hampshire was razed to the 
ground.^ A proper inculcation of the ethics of fear re- 
quired that religious instruction should be under the sur- 
veillance of the masters. New York had found it imprac- 
tical to forbid the enslavement of Christians (1665), and 
it was found that slaves might be baptized without freeing 
them. As a result of Nat Turner's rising in Virginia 
(1831) religious instruction was forbidden to negroes in 
Virginia." In 1852 Delaware forbade negroes to attend 
camp meetings or political meetings. Thus by trying to 
limit intelligence and sensibility it was sought to make these 
new tripods of Hephaestus completely serviceable. A 
South Carolina convention declared it more profitable for 
the masters to use up slaves in seven years as being the aver- 
age capability of negroes imported from the breeding states.* 
It is unnecessary to catalogue the horrors of slavery in evi- 
dence of the completeness of the property right. The most 
of them can be duplicated in the year 1907 in free countries 
by any one collecting horrors. Ichabod said : " We see it 
now in its true light and regard it as the most safe and 
stable basis for free institutions in the world." 

As unrestricted liberty of private property always ends 
in concentration, so this form of property became concen- 
trated. " Probably not more than one white man out of 
every five in the south was a slave holder; not more than 

1 Von Hoist, op. cit., vol. ii. p. 97. ~ Ibid., vol. ii, p. 98. 

3 Lalor's Cyclopedia, "Slavery." ^ Von Hoist, op. cit., i, p. 354- 



443] LIBERTY TO OWN SLAVES IN AMERICA g^ 

half had even the use or direction of slaves." ^ Thus Gen- 
eral Wade Hampton had 5000 slaves and Senator Under- 
wood, of Kentucky, had 8,743. The tendency of unhindered 
concentration of private property to develop a caste system, 
and so destroy the reality of the general liberty to property 
is shown in the fixed and unchanging economic conditions 
that prevailed for years in the south. 

1 Wilson, Woodrow, United States, iv, p. 197. 



CHAPTER VI 

Liberty to Own Land in America 

Economic necessity may be a more efficient instrument 
of control than personal subjection. The Englishman who 
did not care to work came to America with the English- 
man's intention of having freedom for himself at the ex- 
pense of other men. America was material for estates. 
Queen Elizabeth, " of her own especial grace, certain 
science and meere motion" gave to Walter Raleigh and his 
" heires and assignees forever " " to discover, search, finde 
out and view such remote, heathen and barbarous lands, 
countries and territories not actually possessed of any Chris- 
tian princes as to him his heires and assignees shall seem 
good and the same to have, holde, occupie and enjoy with 
all prerogatives, commodities, jurisdictions, royalties, fran- 
chises and pre-eminences thereto or thereabouts by sea and by 
land." Most of the early colonies suffered feudal landlords. 
In Virginia for a dozen years there was only Company land 
and feudal estates with the harshest servile tenure. New 
York belonged first to the Dutch West India Company; 
at a later time nominally to the Duke of York. In Mary- 
land, Lord Baltimore was " supreme arbiter of the lives, 
fortunes and property of the people, the source of all honor, 
justice, religion, order and to a large degree of law itself." 
New Hampshire belonged to Mason and New Jersey to 
Berkeley and Carteret. George Carteret devised his " prop- 
erty," including East Jersey, to six trustees and three heirs. ^ 

' Hough's American Constitutions, vol. ii, p. 32. 
100 [444 



445] LIBERTY TO OWN LAND IN AMERICA iqi 

Peiin owned Pennsylvania and purchased Delaware from 
the Duke of York. North Carolina, South Carolina and 
Georgia were all held as proprietary colonies. The lands 
granted to colonists, whether to individual landlords or to 
communities, were not private property in the present sense. 
The first New England towns seem to have had a sort of 
Germanic house lot system, with a " normal amount of 
planting ground" allotted in various ways.^ Thus the Salem 
villager was allowed a " ten acre lott and a house lott." 
This included widows, but " noe single maiden not dis- 
posed of in marriage, for it would be a bad president to 
keep house alone." Nearly all the New England towns had 
the English system of common fields to some extent." As 
in village communities of other periods the inhabitants could 
not sell freely the portions possessed by them. Thus Con- 
necticut declares (1659) : " No inhabitant shall have power 
to make sale of his accommodation of house and lands un- 
til he have first propounded the sale thereof to the town 
where it is situate and they refuse to accept of the sale 
tendered." ^ Providence did not allow a lot to be sold "but 
to an inhabitant," without consent of the town.* In 1643 
the General Court of Connecticut ordered that as the condi- 
tion of the plantation required that much of the land should 
be improved in common, each town should, before the next 
meeting of the Court choose seven " able and discreet men 
to take the common lands belonging to ech of the seurall 
townes respectively into their serious and sad considera- 

1 Adams, Village Communities of Cape Anne and Salem, in Johns 
Hopkins University Studies, ix. p. 2>2i- 

2 Ibid., p. 37. 

2 Eggleston, Land System of the New England Colonies, in Johns 
Hopkins University Studies, xi-xii, p. 49. 

* Weeden, Economic History of New England, i. p. 57. 



I02 DISTRIBUTION OF OWNERSHIP [446 

tion." ^ Village rights of common existed in the Dutch 
communities of New York. City Hall Park was once a 
village commons where the droves of cattle were sent morn- 
ing and evening to pasture." As extensive land-ownership 
is of no value without tenants, these manors were conferred 
as feudal estates for the transportation of servants, the pro- 
prietor reserving quit rents. In 1732, 2,500,000 acres had 
been engrossed in great grants in New York, while thirteen 
manorial grants alone in 1700 contained 700,000 acres.'' 
Penn granted land as socage tenements — as "of the manor" 
or as "of the seigniory" — liable to quit rents of one shilling 
per hundred acres,* and subsequently to rents varying in 
value from a peppercorn, a red rose, an Indian arrow, a 
buck's foot, a beaver's skin or a bushel of wheat to several 
shillings per hundred acres. In Maryland (1633-4) two 
thousand acres were given to every adventurer transport- 
ing five men servants.^ Thus George Talbott, of Castle 
Roovery, Roscommon county, Ireland, transported six hun- 
dred and forty persons in twelve years thereby becoming 
lord of 32,000 acres in Cecil county.** Captain George 
Evelinton, Lord of the Manor of Evelinton in St. 
Mary's county, George Talbott, Lord of Susquehanna 
Manor in Cecil county, Giles Brent, Lord of Kent Fort, 
on Kent Island ^ and other lords and ladies dispensed 
a sometimes straitened, sometimes lavish, but always lordly 

1 Mead, Political Science Quarterly, March, 1906. 

2 Elting, Dutch Village Communities, in Johns Hopkins University 
Studies, 4th Series, i, p. 25. 

2 Ballagh, Am.erican Historical Association Report, 1897, p. no. 

* Shepherd, Land System of Pennsylvania, in Am. Hist. Assoc, 1895. 

3 McCormac. White Servitude in Maryland, in Johns Hopkins Uni- 
versity Studies, xxii, 1904, p. 16. 

« Ibid., p. 21. 

^ Johnson, John, Old Maryland Manors, pp. 8-9. 



447] LIBERTY TO OWN LAND IN AMERICA 103 

hospitality under the benediction of the ancestral portraits 
and the glamor of the carved wainscoting, or swept up the 
aisles of family chapels, between the slaves of the manor 
on one side and the tenants on the other. The live lord 
had his demesne lands, ^ fealties, escheats, rents and fines." 
The dead lord had a vault in the chapel, while his retainers 
had graves outside marked with plain slabs or boards. The 
records of the court leet and court baron of St. Clement's 
Manor (1659-72) contain such entries as this: "We pre- 
sent that upon the death of Mr. Robte Sly there is a re- 
liefe due to the lord & that Mr. Gerard Sly is his next heire 
who hath sworne fealty accordingly." ^ 

Virginia had some traces of the community system in its 
grants of commons and its great estates granted to favor- 
ites.* The glories of these colonial lords were less short- 
lived than those of Locke's South Carolina landgraves, 
count palatines, and caciques with their dominion over free- 
holders and " adscripii glebae.'" But lords of provinces 
and lords of manors alike passed away — for a time at least. 
Although Maryland, Pennsylvania and Delaware remained 
nominally under such proprietorship until the Revolution, 
this property faded into hereditary claim on governmental 
privilege, such as the charter right to veto legislation. 
Berkeley sold West Jersey to John Fenwick in 1673 for 
$1000.'^ The country was too large for feudalism and the 
north was not adapted to large estates. The manorial 
lords lost their feudal privileges and became owners of free- 

1 McCormac, op. cit., p. 13. 
~ Matthews vs. Ward, 10 Maryland, 443. 
3 Johnson, op. cit., p. 8. 

* Ingle, E., Local Institutions in Virginia, in John Hopkins Univer- 
sity Studies, 3d Series, ii-iii. 

' Hough's American Constitutions, ii, p. 104. 



I04 DISTRIBUTION OF OWNERSHIP [4^3 

holds. The Patroon estates were swept away, although the 
Rensellaerwyck manor did not terminate until 1839/ In 
1767 twenty-seven Maryland manors of 100,000 acres were 
sold. In 1776 proprietary manors of 70,000 acres remained 
unsold. The Baltimores received nothing for their rights. 
Penn was given for private estates £500.000, while his gen- 
eral rights were confiscated." Massachusetts had abolished 
feudal tenures in 1658.''^ A Massachusetts magistrate had 
said : " The fundamental law which God's nature has given 
to the people cannot be infringed. The right of property is 
such a right." * In 1793 New York partitioned the com- 
mon tracts by act of the legislature." And although the 
humanitarian incorporators of Georgia had said that one 
person could not have more than fifty acres, and this in tail 
male, dissatisfaction with this limitation led to the recogni- 
tion of the principle of absolute ownership in 1750.*' Thus 
political sovereignty had been detached as far as possible 
from the land before the Revolution. It was declared in a 
Massachusetts document : " The idea of a man born a mag- 
istrate, law giver or judge is absurd or unnatural." 

But notwithstanding all the remnants of feudalism in 
America the prevalent tenure from the beginning was al- 
lodial. It was not like the free land ownership of early 
Teutonic times, if we assume there was such land-holding. 
It was not interdependent, but individual. 

To show chronologically the alternation of liberty and 
limitation of the ownership of American realty is impos- 

1 Hough, Constitutions, ii, p. 57. 

- Fiske, Critical Period of American Plistory, p. 71. 

3 Reinsch, Common Lazv in the American Colonics, p. 14. 

4 Ihid. 

5 Elting, Dutch Village Communities, p. 40. 
•3 Banks, Land Tenure in Georgia, p. 11. 



449] LIBERTY TO OWN LAND IN AMERICA 105 

sible. It will be attempted only to show the trend of the 
law towards distinct individual ownership and the concur- 
rent necessity of social limitations. A period of legal limi- 
tations will not appear as clearly as in the case of slaves and 
of corporations. Indeed such a period of limitation has 
scarcely begun. The security of private property was al- 
ready guaranteed under the common law and needed only 
the confirmation of our own political unity to give it the 
greatest possible stabilit}^ The Declaration of Indepen- 
dence contended for the inalienable rights of life, liberty 
and the pursuit of happiness, which was a contention against 
history. But since there is no semblance of liberty and only 
a semblance of life and no approach to a worthy happiness 
without economic independence, it must be supposed that 
the framers of that document had in mind the guarantee of 
ownership. At any rate the greatest internal hindrance to 
union was the economic rivalry and insecurity of the colon- 
ies. It was said in the Massachusetts Convention (1788) 
of Shay's Rebellion, " They would rob you of your prop- 
erty, threaten to burn your houses and oblige you to be on 
your guard night and day." ^ "In order to have this liberty 
it is requisite the government be so constituted as one man 
need not be afraid of another."" General Warren said: 
" That personal freedom is the natural right of every man 
and that property or an exclusive right to dispose of what 
he has honestly acquired by his own labor, necessarily arises 
therefrom are truths that common sense has placed beyond 
the reach of contradiction." ^ Thomas Jefferson gave 
energetic attention to the destruction of primogenitures in 
Virginia, holding with Montesquieu, that the main object of 

^Quoted in Hart. Formation of the Union, p. 113. 

2 Montesquieu, xi, 6. 

^ Mellen, On the Constitutionality of Slavery, p. 35. 



I06 DISTRIBUTION OF OWNERSHIP [^^q 

a legislator is to promote equality of fortunes, to restrain 
heritages, donations and doweries. The " general welfare " 
and the " blessings of liberty," professed as ends by the 
constitution, are equally with the Declaration of Independ- 
ence, expressive of concessions and ideals rather than of 
reality. As seen already in the consideration of slavery it 
had little influence on economic evolution. The state con- 
stitutions make like declarations. Thus in twenty-seven 
states a man has a right to " pursue happiness." The 
amendments to the constitution are the expression of na- 
tional desires for various things conceived as attributes of 
liberty. Thus a man's house is his castle and in it his prop- 
erty and his person are secure from illegal seizure or ex- 
actions. 

Concession of rights to some is followed by the conces- 
sion of similar rights to others of uncertain citizenship. 
Wives and aliens and slaves and Indians have successively 
gained in civil rights. At the beginning of the nineteenth 
century the husband still had a customary right to restrain 
and control his wife's action. By the common law the hus- 
band could take the rents and profits of his wife's land. He 
could grant it to some one else for the time of his life. It 
could be levied on for his debts, and a life estate could be 
given to the execution purchaser. If the land was not so 
conveyed and his wife died after having had a child by him, 
he was entitled to the land for life. If the land was sold 
and conveyed by deed made by both of them, the money or 
notes representing the consideration belonged to the hus- 
band exclusively.^ Indeed the wife was all but his prop- 
erty. She might liken her position to that of her lord's 
redemptioners or his slaves. She was somewhat the 
strongest of the subject personalities and her liberty to a 

^ American and English Encyclopedia of Lazv, 2d Edition, xi, p. 817. 



45 1 ] LIBERTY TO OWN LAND IN AMERICA io7 

Status corresponding to her husband's should therefore come 
first. The right to own precedes the right to vote as in the 
case of the negroes. The community idea, in which the 
husband was the lord gave way before the individual idea. 
The guardianship of unmarried women first disappeared. 
The common law contractual incapacity of married women 
was removed by the practice of the chancery courts in giv- 
ing to her estate free from the common law rights of her 
husband and requiring the husband to support the wife and 
children. Early in the nineteenth century contractual rights 
were given to deserted wives. ^ Greater industrial activity 
secured to the wife the right to carry on business. She 
could secure separate property by contract or by the dona- 
tion of a third party. She was secured by legislation an in- 
terest in her own industry. In almost all states at present 
the married woman has as much right over her property as 
the single woman. " The legislature shall pass such laws 
as may be necessary to protect the property of married 
women from the debts, liabilities and control of their hus- 
bands." So far as the law can equalize the status within 
the conjugal unity it has done so. 

The common law did not allow an alien to take by de- 
scent from an intestate ancestor. Although as recently as 
1887 Congress enacted that aliens cannot hold lands in the 
territories or in the District of Columbia, at present in most 
of the states the rights of aliens are secured. Liberty to 
own property now belongs to any one who can get it. 

Laws giving definiteness to individual ownership and dis- 
entangling it from partial claims increase the liberty and se- 
curity of ownership. These legal developments for the 
most part going far back into English history, may be 

^ Loeb, I., The Property Relations of Married Parties, pp. 30-1. 
' West Virginia Constitution, 1872, vi, 49. 



Io8 DISTRIBUTION OF OWNERSHIP [4^2 

loosely classified as liberties of possession, of use, of dis- 
position. 

I. Laws securing the possession of property concern : 
uses and trust ; tenancy ; disseizin ; mortgages ; forfeiture ; 
fines ; eminent domain ; homestead. 

II. Laws securing chiefly the use of property concern: 
malicious prosecution ; easements ; fences ; tithes and offices. 

III. Laws affecting chiefly the right of disposition con- 
cern : division ; bequest ; intestate succession ; escheat ; wills ; 
fees; primogeniture; restraints on alienation; perpetuities; 
conveyancing and registration. 

The divideil ownership resulting from life estate and 
from uses and trusts are not common in America. They 
have been expressly abolished in some states.^ Executory 
trusts are not as common in this country as in England." 
Courts prefer to construe language as not creating condi- 
tions in estates. Rent charges created by a grant of rent, the 
owner retaining the entire land interest, common in Eng- 
land, are very rare in America. 

When population overtakes economic opportunity the 
landlord's total ownership, or claim on other men is in- 
creased by the detachment of tenant right, by giving tenant's 
freedom without the conditions of freedom. The abandon- 
ment of feudal tenures has been shown already. At com- 
mon law the covenant to pay rent was independent of the 
covenant on the part of the lessor. If the building burned 
the rent ran on, and non-payment of the rent did not end 
the tenancy. But now the landlord may regain his posses- 
sion if the rent is not paid." The common law required 
six months' notice to relinquish tenancy, but now the land 

1 Stimson, American Statute Lazv, p. 2^3- 

~ Tiffany, Real Property, i, p. 238. 

" Beers, in Tico Centuries of American Law, p. 58. 



453] LIBERTY TO OWN LAND IN AMERICA 109 

lord can regain possession in a few clays. Definiteness of 
tenure is secured by limiting the terms of leases. Thus New 
York provided that '' No lease or grant of agricultural land 
for a longer period than ten years hereafter made in which 
shall be reserved any rent or service of an}^ kind shall be 
valid." ^ In Iowa the term is twenty years; " in Michigan 
twelve; ^ and in Arkansas a lease for a longer period than 
twenty-one years is held a conveyance in fee to the lessee.* 

Waste — such as unreasonable destruction of lumber, or the 
changing of the character of the land in a way not in ac- 
cordance with the local custom, or by improper tillage, allow- 
ing unnecessary deterioration of an estate — is restrained by 
injunction, by damages, by penalty in some states of treble 
damages, sometimes by forfeiture. The procedure of the 
common law for the recovery of possession of real estate 
has been superseded by a single action of disseizin or eject- 
ment.^ 

The ownership of land is less imperilled by mortgages. 
The holder of the " dead pledge " once took both the land 
and the revenues without applying them in satisfaction of 
his debts. The vadttin vivium enabled the borrower to 
keep both the use and the possession of the land. Then the 
lender first got an estate upon condition of failure to re- 
deem; later an absolute conveyance with agreement to re- 
convey on payment of debt at a fixed time.*' So the bor- 
rower sometimes lost his land for a small debt. In the time 
of James I the mortgagor obtained the right to maintain a 
bill in equity to redeem even after default until cut off by 
foreclosure and parties to the mortgage were not allowed to 

^ Constitution, i, 13. " Cons., i, 24. 

3 Cons., viii, 12. -^ Cons., i, 24. 

5 Watrous, in Tzvo Centuries of Am. Law, p. 88. 
^ Am. and Eng. Enc. of Law, "Mortgages." 



no DISTRIBUTION OF OWNERSHIP [4^4 

redeem. In 1737 Lord Hardwicke decided that the mort- 
gagor was the owner and the land was only security. In 
the colonies the mortgagee held title only against the mort- 
gagor, whereas formerly he held against the world. In most 
of the states the equitable theory that the mortgage is only 
a security prevailed. Legal rights are abrogated by statute 
in some states and are rarely asserted in those states holding 
most nearly to the old legal theory. This change coincides 
with the general gain in liberty of ownership. Thus 
statutes were enacted in South Carolina in 1791 ; in New 
York in 1828; in Michigan and Indiana in 1843; i^ Iowa 
in 1850; in Kentucky in 1889. The methods of foreclos- 
ure have accordingly become less destructive of owner- 
ship. Under the theory that the mortgagee was the owner 
strict foreclosure was the rule. Now it is becoming obso- 
lete. It is the rule only in Connecticut and Vermont 
and occurs rarely in a few other states.^ Now on the 
theory that the mortgage is a lien, the usual method is by 
a suit in equity for a sale of the land, the sale to be con- 
ducted in a way prescribed by statute." " Recent legisla- 
tion in regard to real estate mortgages seems to be con- 
cerned chiefly with the best way to release them." ^ In 
Kansas (1903) in case of the mortgagee's death, a mort- 
gage may be released by his executor or administrator dur- 
ing the period of administration and afterward by his heirs 
or devisees. In Minnesota (1903) a mortgage runijing to 
a corporation may be released by its president or vice- 
president, attested by the secretar}^ or treasurer.^ 

Forfeitures for felony, once the rule, have been abro- 
gated by statute. The constitutions of the United States 
and of the states prohibit " excessive fines." 

1 Gager, in Tzvo Centuries of Am. Lazv, " Mortgages," passim. 

2 Tiffany, op. cit., ii, p. 1260. 

^ A^. Y. Library Bui. of Legislation, 22 (e6). 



455] LIBERTY TO OWN LAND IN AMERICA m 

Some of the earlier state constitutions did not secure com- 
pensation for property taken by condemnation under the 
power of eminent domain. All do so now, and some go 
further, requiring prepayment of compensation.^ Some 
states make an attempt to purchase the land a condition 
precedent to condemnation." The right can be exercised 
by corporations only by express grant or necessary impli- 
cation, and the property can be used only for the purpose 
for which the power was granted." There is a tendency 
to greater liberality in the payment of damages " arising 
as a consequent of taking " than formerly. " There has 
been a tendency to restrict more and more the manner of 
exercising the power." ■* 

During the latter half of the nineteenth century home- 
stead exemption laws became common. By these an amount 
of property deemed necessary for personal comfort was 
secured to its owner against attachment or execution by 
creditors. Thus the Georgia constitution of 1868 ^' secured 
realty to the value of $2000 and personal property to the 
value of $1000 against all judgments, decrees or execu- 
tions, except for taxes, or money borrowed and spent in 
the improvement of the homestead or for purchase money 
of the same or labor or material on the property. 

The right of action for malicious prosecution has been 
extended to include civil cases where exceptional injury has 
been done through groundless charges of insanity, bank- 
ruptcy and the like.*' 

Greater distinctness of private rights is shown in the 

1 Am. and Eng. Enc. of Lazv, x, p. 1050. 

2 Ibid., X, p. 1054. 3 Ibid., x, p. 1055. 
* Ibid., 1050. 

s VIII, i, one. 

® Watrons. in Two Centuries of American Law, p. 91. 



112 DISTRIBUTION OF OWNERSHIP [4^5 

American attitude to certain forms of easement recog- 
nized in England. There the right to have hght and 
air pass over the land of a neighbor unobstructed by 
any erection upon such land may be acquired by prescrip- 
tion from the mere fact that for a number of years there has 
been such unobstructed passage. The right to have lateral 
support of buildings may be acquired in the same way. A 
neighbor who excavates may be restrained by injunction or 
he may be liable for damages. In American use these rights 
have been generally disallowed.^ 

Advowsons, tithes, dignities and offices are no longer at- 
tached to realty. 

Greater freedom of the right of disposition has been se- 
cured in laws concerning division. It was once hard to 
divide a joint estate. Division could be effected only by 
mutual conveyance with pecuniary compensation for in- 
equality, or by charges upon land by means of easements. 
A sale of division could be made only by agreement of all 
the parties." Now the courts secure unqualified right to 
sell. 

Once intestate succession was the only kind of succession 
when the eldest son was born with responsibility for the 
peace of the ancestral soul. Intestate succession of chil- 
dren has become certain and a child brought up in the en- 
joyment of property is assured a continuance of it. 

Property of bastards and aliens no longer escheats as 
formerly. There is no escheat to lords. Heirs are pro- 
tected from escheat by the provision that a certain period 
shall be allowed within which persons claiming to be heirs 
may establish their title to property. 

In nothing is the greater freedom of modern ownership 

1 Beers, in Tivo Centuries of Am. Law. p. 60. 

2 Pomeroy. Equity Jurisprudence, iii, p. 2132. 



457] LIBERTY TO OWN LAND IN AMERICA 113 

more apparent than in the law of wills. The law secures 
an owner the right to dispose of his property as he pleases 
and to do it secretly. Greater freedom has been allowed in 
the right of bequests to corporations and charities and the 
like. The Wills Act of 1837 allowed the testator to dis- 
pose of all property that might yet be acquired before his 
death. The intention of the testator is sought. If a dis- 
position of a testator becomes invalid after his death it is 
still sought to apply the property as nearly as possible ac- 
cording to the will of the testator. If there appears an in- 
tention on the part of the testator that the conversion take 
place not only for the purposes named in the will, but for 
all purposes whatever, such an intention, it is said is more 
easily and readily inferred in this country than in England.^ 
Some states validate the written or oral will of the testator. 
Mere assent or incidental reference to a will is sufficient 
publication." " In New York, in Massachusetts and in 
other states wills may be deposited for safe keeping. The 
tendency is to make all rights of action and executory and 
future interests devisable.^ 

It is evident that the right of disposition must be limited 
in future time in order that it may be as unlimited in ex- 
tent in the future as it is now. Only a live owner can own. 
Fees tail and primogeniture, having limited the power of be- 
quest and the liberty of property, have disappeared. Fees 
tail have been abolished by statute in some states. The de- 
visee's estate has been turned into a fee simple wherever pos- 
sible.^ In other states the estate of the donee is turned 
into a life estate, providing that the one who shall suc- 

1 Tiffany, op. cit., i, p. 263. 

2 Ihid., ii, p. 946. 

3 Daggett, in Tzvo Centuries of American Law, p. 177. 

4 Tiffany, op. cit., i, p. 50. 



114 DISTRIBUTION OF OWNERSHIP [438 

ceed him shall take absolutely/ Primogeniture was recog- 
nized in some of the colonies : thus by Rhode Island until 
1770; by Maryland until 1715 ; by Pennsylvania until 1683 ; 
by New Jersey, New York, Virginia, South Carolina and 
Georgia until 1776, while in Massachusetts, Connecticut 
and Delaware the oldest son had a double portion." When 
Pendleton of Virginia implored Jefferson to let the oldest 
son have a double portion, he said : " No, not till he can eat 
a double portion of food and do a double allowance of 
work." 

Restrictions of mortmain seek to preserve private prop- 
erty. " The laws of the different states show a distinct 
policy to prevent an undue accumulation of property and es- 
pecially of land." •'' Thus Mississippi forbids entirely de- 
vises of lands or interests for religious or charitable pur- 
poses. Some states limit the total amount of land that may 
be held by a corporation. 

The right to alienate is an essential of private property. 
Accordingly property cannot be transferred so as to prevent 
the alienation by the new owner. It cannot be transferred 
free of the liabilities of the beneficiary ; alienation to par- 
ticular persons cannot be forbidden by the grantor ; nor can 
alienation except to particular persons be prohibited ; nor 
can the grantee be restrained from selling without offering 
first to some particular person; nor from alienating other- 
wise except by will ; nor from alienating except to specified 
persons ; fines and quarter sales are void ; the grantee can- 
not be forbidden to sell without paying a sum of money to 
the grantor. 

Even a debtor has a general right to dispose of property, 

1 Beers, in Tzvo Centuries of American Laiv, p. 55. 

2 Daggett, in Two Centuries of American Law, p. 186. 

3 Freund, The Police Power, p. 375. 



459] LIBERTY TO OWN LAND IN AMERICA u^ 

according to his own judgment and if he acts in good faith 
a creditor has no right to complain/ He may even trans- 
fer for an inadequate consideration, or in preference of his 
own family as creditors, or for reasonable payments for life 
insurance for the benefit of his own family." 

A perpetuity — " an estate inalienable though all men join 
in the conveyance " is an impossibility. Like restraints on 
alienation in general, it has gradually been limited. " The 
purpose of the rule against perpetuities is to facilitate the 
alienation of property by prohibiting the clogging of the 
title with future interests dependent on contingencies that 
may not arise at all or until a remote period." ^ Thus 
value is not depreciated by contingency. Since the aim of 
the rule is the greatest liberty of owners, the period of vest- 
ing has been extended to a time, destructive neither of the 
OAvner's present right of disposition nor of the integrity of 
remote ownership. The period is not invariable, being usu- 
ally a life in being and twenty-one years thereafter; some 
times two lives and twenty-one years. 

Methods of conveyancing have come into use which make 
disposition less cumbersome than formerly. Feoffment, 
" livery of seisin " is obsolete, disposed of in some states 
by statute. There are but two simple forms of deed in com- 
mon use — the warranty deed and the quitclaim deed. 
Statutes set forth short forms of these deeds. Seals are 
no longer of importance. Witnesses are unnecessary. 
These simple conveyances are sufficient to pass fee simple, 
or absolutely heritable estate. A conveyance intended to 
take effect as a certain kind of conveyance, if not valid for 
that purpose, will if possible be construed as a conveyance 
of another character in order that it may take effect. The 

^ Am. and Eng. Enc. of Law, xiv, p. 224. 

- Ibid., xiv, p. 243. 3 Tiffany, op. cit., i, p. 245. 



Il6 DISTRIBUTION OF OWNERSHIP [460 

English sought to avoid pubhcity of transfer. Systems of 
registration have been common in America, with provis- 
ions that certified copies of the records shaU be admissible 
in evidence and that unrecorded deeds shall be of no ef- 
fect against subsequent purchasers without actual notice. 
When land has been registered a certificate of title is made 
out and kept in the office of the register and a duplicate 
given to the owner. The deeds made subsequently, in- 
stead of passing title operate only as contracts to convey and 
as authority to the registrar to transfer the title. The trans- 
fer itself is effected by the surrender of the duplicate 
certificate of title and the issuing of a new certificate 
to the transferree. Transfers by descent, devise or judicial 
process are made by the registrar on the authority of 
the court having jurisdiction. Transfer is facilitated 
throughout the west by the rectangular land survey 
system. 

The land policy of the government has fostered private 
property. From 1784 to 1801 land was sold by the govern- 
ment in large quantities by special contracts. From 1800 
to 1820, 18,000,000 acres were sold in small lots on credit. 
In the next twenty years 76,000,000 acres in lots to suit 
purchasers were sold for cash. After 1837 by the pre- 
emption system the most desirable lands were reserved for 
actual settlement at a low price. • Under the homestead sys- 
tem (1862), and the timber culture act (1873) 150,000,000 
acres have passed into private hands. Since 1880 sales have 
averaged 4,000,000 acres yearly. The minimum price of 
ordinary lands has been for many years $1.25 an acre. The 
new states have been granted 25,500,000 acres for internal 
improvements, 500,000,000 acres of saline lands, 68,000,000 
acres for school purposes, 1,000,000 acres for universities 
and 10,000,000 acres for agricultural colleges. 23,000,000 
acres were granted to new states in 1 890-1, and 50,000,000 



46l] LIBERTY TO OWN LAND IN AMERICA ny 

acres to railroads before 1873/ The total amount of public 
lands passing into private ownership between 1898 and 
1905 was 51,917,215.15 acres. - 

The multiplication and complexity of the laws defining 
and protecting the individual right in property indicate the 
extreme of the prevalence of the conception of private prop- 
erty, while on the other hand they emphasize the depend- 
ence of such property on the social sanction. " The pay- 
ment of a debt cannot be enforced ag'ainst the government 
by a suit, but claims against it are none the less legal or 
equitable on that account." ^ 

In illustration of the recent definition given to private 
property may be cited the special laws of Kentucky (1892) 
and New York (1903) for the protection of ginseng gar- 
dens from burglary.* Thirteen states passed laws relating 
to interference with electric wires, or the diversion of elec- 
tric currents. Florida (1903) increased the penalty for 
malicious injury to fences to a possible ten years imprison- 
ment and $10,000 fine.'^ Minnesota punishes the thief who 
sweeps any railroad car while in transit or standing on any 
railroad track in the state. '^ 

The extreme conception of liberty to own was expressed 
by John Ouincy Adams : '' " The moment that the idea is 
admitted into society that property is not as sacred as the 
laws of God, anarchy and tyranny begin." The American 
liberty to own land as nearly as possible as a chattel is the 
most complete in history. 

1 See Hart, in Bullock's Readings in Finance, pp. 64-9. 
- Congressional Record, June 2"/, 1906, p. 9574. 

3 Emerson vs. Hall, 13 Peters (U. S.), 412. 

4 AT. Y. Lib. Bui. of Leg., 87, di8. 

^ A'". Y. Library Bulletin of Legislation, 87, di8-20. 
6 Quoted in Willoughby, Rights and Duties of American Citizenship, 
p. 65. 



CHAPTER VII 
Liberty to Own Corporate Property in America 

Industry and commerce being of a more evidently pub- 
lic nature than slaves and land were more slowly reduced to 
private property. American enterprise was harassed and 
repressed by the British mercantile theory, of buying nothing 
and selling everything. Thus in 163 1 an export duty of 
3s. 4d. was put on every piece of woolen broadcloth.^ The 
colonists themselves limited commercial freedom. Thus the 
Massachusetts Laws of 1649 show regulations of prices and 
rates of interest, and as late as 1777 an elaborate tariff of 
charges for labor and merchandise was enacted for Boston, 
although it was soon repealed.^ 

Liberty increased in the form of lawlessness in the long 
continued evasion of the navigation acts by which the 
colonies were excluded from the carrying trade. Thus in 
1700 one-third of the trade of New York and Boston was 
in violation of the law. Writs of assistance and the like 
served only to make liberty lawful. 

Before there could be real liberty in the ownership of 
trade and industry, there must be a stable national unity 
to guarantee freedom from foreign aggression and end the 
commercial wars at home, which caused Washington to 
say : " We are one nation today and thirteen tomorrow. 
Who will treat with us on these terms." The " more per- 

1 Wright, Industrial Evolution of the U. S., p. 7. 

2 Freund, The Police Power, p. 384. 

118 [462 



463] LIBERTY TO OWN CORPORATE PROPERTY uq 

feet union " and the constitutional power of Congress to re- 
gulate commerce, and the decisions of the courts sustain- 
ing the sovereignity of the United States secured such unity. 

The increase of machinery and population and the re- 
sulting interdependence and intricacy of relations in asso- 
ciative production and ownership developed a form of ex- 
changeable representatives of individual relations. This 
capitalization of status appears in the enormous extension 
of credit and in the shares of corporations. In 1904 there 
was $3,908,509,152 of deposit currency/ which was a sum 
greater than the coinage of the mints of the United. States 
from 1792 to 1897. 

The mere partnership in which each partner was bound 
for the entire indebtedness and which was dissolved by death 
of a partner was inadequate for the large enterprise neces- 
sary to commercial development. Industry was developed 
by the device of an artificial person with larger powers and 
smaller responsibilities than individuals and with larger 
economic responsibilities and smaller powers than the state. 
"As touching corporations the opinion of Manwood, chief 
baron was this that they were invisible, immortal, having no 
conscience or soul and that therefore no subpoena lieth 
against them, they cannot speak, nor appear in person but 
by attorney." Nevertheless this corporation is an institu- 
tion whose profits accrue to individuals. The fiction of a 
corporate entity has served chiefly as a cloak of innocence. 
" The fact must be constantly kept in review that the meta- 
physical entity has no thought or will of its own, that an act 
ascribed to it emanates from and is the act of individuals 
personified by it." - Since these corporations are " arti- 
ficial, intangible invisible and existing only in contemplation 

'^Statistical Abstract, 1905, p. 114. 

2 49 Ohio, 137, cited by Horack, Industrial Corporations, p. 15. 



I20 DISTRIBUTION OF OWNERSHIP [45^ 

of the law," ^ and thus are more clearly creatures of the 
state than landed property, and since they are more evi- 
dently " affected with a public interest," it has not been 
possible for ownership in them to grow into such private 
property as has been conceded to mere physical possession. 
But a series of liberties to own corporate shares has approx- 
imated them to private property. Before the right to 
share in the management of corporate enterprise could be 
conceded to any man with capital to invest, political prerog- 
atives must be diminshed. Earlier corporations were dis- 
tinctively municipal. Jealousy of the prerogatives of gov- 
ernment led England to oppose the exercise of political cor- 
porate functions by the colonists and to insist that the 
colonies had never been public governments. The neces- 
sity of granting municipal corporate powers and charters to 
religious bodies led Massachusetts to the incorporation of 
Harvard College in 1650, but upon the restoration of the 
king this act was punished as an invasion of the rights of 
the crown. The same jealousy of corporate powers, through 
their experience with proprietary government caused the 
colonists themselves to oppose charters. This jealousy also 
led Parliament in 1741 to forbid incorporation for business 
purposes. Up to that time there had been but three such 
incorporations. Connecticut (1732) gave a perpetual char- 
ter to a " society for promoting and carrying on trade and 
commerce with any of his majesty's dominions and for en- 
couraging the fishery, etc., as well for the common good as 
for their own private interest." This institution became a 
bank, inflated the currency and was suspended " as not for 
the peace and health of the government." " In 1688 a peti- 
tion was presented to the crown for a charter of incorpor- 

1 Marshall, quoted in Small, Am. Journal of Sociology, i, p. 398. 
- Baldwin, Modern Political Institutions, p. 185. 



465] LIBERTY TO OWN CORPORATE PROPERTY 121 

ation for a trading company with authority to open mines in 
New England. The colonists opposed this as a monopoly 
and an intrenchment on the field of government/ The 
large aggregations of capital necessary for commerce were 
under the management of joint stock companies, even after 
the adoption of the constitution. Two-thirds of the early 
corporations were quasi-public. Out of a total of perhaps 
225 corporations before 1800, only six were for commerce 
and only twelve were for manufacturing." As long as 
little distinction was made among the kinds of corporations, 
industrial incorporation was difficult. It was not thought safe 
to permit perpetual possession in a political organization 
with obligations distinct from that of its members. " Men 
Avho are honest separately, conjunctively are hard-hearted, 
determined villains." ^ And indeed the social sovereignty 
in commercial corporations differs from that of purely poli- 
tical corporations in a democracy chiefly in being less demo- 
cratic in its aims and in its government, since it substitutes 
private for public ends and is governed not by the theoreti- 
cal personal majority of political democracy, but by a stock 
majority. The early jealousy seems to be not without pres- 
ent justification in the conduct of corporations. 

Of business companies before 1800 twenty-eight were 
banks and twenty-five were insurance companies. They are 
perhaps distinguishable from other corporations in that 
their extension involves extension of property in them to 
all with whom they do business. In time other corporations 
were seen to be of mutual benefit. In any case the in- 
creasing freedom of contract, the existence of nearly two 
thousand public quasi-corporations and public municipal cor- 

1 Baldwin, in Two Centuries of American Law, p. 270. 

- Ibid., p. 212. 

3 Lord Bathurst, quoted in Baldwin, Mod. Polit. Inst., p. 171. 



122 DISTRIBUTION OF OWNERSHIP [465 

porations, religious societies and the like and the change in 
transportation methods, together with increasing social in- 
terdependence and increasing population, caused the rapid 
development of corporations. 

Political prerogative was diminished by the early es- 
tablishment — contrary to English law — of the theory that a 
corporation can do only what it is chartered to do. 

The universal substitution of general laws of incorpora- 
tion for the earlier special grants of charters was the work 
of the same half century in which the rights of ownership 
of slaves and of land became most free. The first general 
incorporation law was that of New York in 1784 for the 
formation of ecclesiastical societies.^ All but six state con- 
stitutions now guarantee the formation of corporations un- 
der general laws. The others have general laws, but pass, 
in addition special acts. Corporations can be formed in a 
day as readily as partnerships. 

Security of corporate ownership was given by the judicial 
interpretation of a charter as a contract. " In England a 
private as well as a public corporation may be dissolved by 
act of Parliament, but in the United States. . .the charter of 
a quasi-public or a private corporation is. . .within the pro- 
tection of that clause of the constitution of the United 
States, which forbids a state from passing any law impair- 
ing the obligation of contracts." " 

Both American social philosophy and law encouraged the 
the rapid extension of corporations. The prevailing indiv- 
idualistic philosophy which now opposes the freedom of 
corporate power, long supported this non-individualistic- 
form of ownership and there was before the Civil War little- 
opposition to monopoly. The country was agricultural.. 

1 Baldwin. Mod. Polit. Insfs., p. 174. 

- Dartmouth College Case, 4 Wheaton, 518. 



467] LIBERTY TO OWN CORPORATE PROPERTY 123 

Monopoly was not perceived. Competition existed and was 
even supposed to be the cause of progress. Governmental 
encouragement by tariffs and bounties, inspired by the in- 
dividualistic spirit was freely given to corporations. Thus 
during thirty-five years before the Union Pacific railway 
was completed, the government gave to road, canal and 
railroad corporations public lands equal to the thirteen ori- 
ginal states as they now stand. ^ The belief that shares in 
such corporations are as much private property as any other 
form of ownership has often been legally expressed. Of 
even the most public form of corporate property the New 
York Constitution says : "A street railroad franchise is 
' property ' in the highest sense of the term and not a mere 
license or privilege revocable at the will of the state." 

The law of corporations is a development of the last 
sixty years. Thus coupon bonds are not mentioned in Par- 
sons on Notes and Bills in i860." The law seeks to define 
stocks as private property. Formerly on the dissolution 
of a corporation, debts to and from it were forgiven and its 
personal property went to the state. ^ Minority stockholders 
formerly had inadequate remedy against fraud by directors, 
but now simple stockholders may institute suit.* Courts of 
equity protect the minority from fraud by the majority as 
where the majority has an interest in two corporations con- 
tracting with each other." The majority cannot bind the 
minority to an act outside of the chartered powers.** The 
law forbids directors to expel a stockholder.'^ It is well 
settled that any stockholder may inspect the books and 
papers of a corporation for proper purposes and at proper 

^ Montgomery, Leading Facts in U. S. History, p. 345. 

- Cook, On Corporations, p. 720. ^ jjjid^^ p. 729. 

* Clark, Lazu of Private Corporations, p. 389. Cook, op. cit., p. 765. 

^ Cook, op. cit., p. 710. 6 Clark, op. cit., p. 445. 

^ Cook, op. cit., p. 22,. 



124 DISTRIBUTION OF OWNERSHIP [468 

times/ The common law gave but one vote to each share- 
holder, but now a vote is given to each share." The right 
of disposition is absolute. The rights of private corpora- 
tions have been fortified by the Fourteenth Amendment and 
the decisions of the Supreme Court that they are persons 
within the significance of that amendment and hence en- 
titled to the full benefit of its guarantees against deprivation 
by authority of any state of property without due process 
of law or denial by any state of the equal protection of its 
laws. Under this amendment corporations can claim all of 
the rights and exercise more than the immunities of private 
citizens. A corporation is a sort of commercial over-soul, 
into which its members may ascend for immunity, and from 
which they may descend for benefits other than spiritual, 
" pleading the rights of natural persons on the one hand and 
setting up the privileges of artificiality on the other to es- 
cape responsibility." ^ Thus they sustain their ancient char- 
ter as the persona -Rcta of Innocent IV, who vested titles of 
land in a saint for mortal use, the church being the guardian. 
The corporate liberty to contract freely has been limited 
very reluctantly by the courts and many contracts in re- 
straint of trade have been upheld. Thus an association 
agreeing not to deal with those violating its agreement was 
upheld in the English case, Mogul Steamship Company vs. 
McGregor Gow & Company which has been followed in 
some cases in this country. Thus an Illinois court refused 
to compel admission to membership in a live-stock exchange 
or to enjoin the exchange from notifying its members not 
to deal with the plaintiff.* This of course while upholding 

1 Clark, op. cit., p. 336. - Ibid., p. 473. 

3 Horack, Industrial Corporatons, p. 9. 

4 Am. Live Stock Com. Co. vs. Chicago Live Stock Exch., 143 111., 
210. Freund, op. cit., p. 339. 



469] LIBERTY TO OWN CORPORATE PROPERTY 12^ 

the rights of private property tended in fact to undermine 
its possibihty. Similar agreements have been held not to 
be illegal under the federal anti-trust law. The courts have 
sustained sales with provisions for maintaining prices or for 
the exclusive handling of goods/ An agreement of a ven- 
dor of a business not to engage in the same business has 
been held to be not unreasonable.^ The line of demarca- 
tion between decisions condemning and those upholding 
such contracts seems to waver between the principle of pri- 
vate property in business and the limitation necessary to 
prevent it from being oppressive. Indeed all of the mass of 
decisions and statutes in restriction of corporate liberty 
which will later be referred to as limitations of ownership 
need also to be considered here as efforts to preserve liberty 
of private property, since this inspires most of them. 

Notwithstanding the frequent and sustained prescrip- 
tion of rates in many businesses " affected with a public 
interest " and having legal or actual monopoly, legislative 
and judicial sentiment has opposed general regulation of 
charges. The Court of Appeals of New York said that no 
power resided in the legislature to regulate private business, 
"prescribe the conditions under which it should be conducted, 
fix the price of commodities or services or interfere with the 
freedom of contract, and that the merchant, manufacturer, 
artisan and laborer are under our system of government left 
to pursue their way untrammeled by burdensome and re- 
strictive regulation, which however common in rude and ir- 
regular times, are inconsistent with constitutional liberty." ' 
" The legislature may not destroy vested rights, whether 
they are expressly prohibited from doing so or not, but 

1 Freund, p. 340. 

2 Ibid., p. 343. 

3 People vs. Budd, 117 N. Y., i. Freund, op. cit., p. 388. 



126 DISTRIBUTION OF OWNERSHIP [470 

Otherwise may legislate with respect to corporations, 
whether expressly permitted to do so or not." ^ 

The liberty to own having been guaranteed by general 
laws, everything possible has been done by the states to aid 
corporations in the exercise of the rights of private prop- 
erty. Certain states vie with each other in laws giving as 
little liability and as much secrecy as possible. In twenty- 
five states only three persons are required for an incorpora- 
tion. In Nebraska, " persons desiring " may incorporate. 
In Iowa one man may elevate himself into an " artificial, 
invisible and immortal commercial entity." ~ Voting trusts, 
by which the majority owners can concentrate the manage- 
ment have been sustained. Freedom to " water stock " has 
been secured in some states. Thus New Jersey and Dela- 
ware say that " in the absence of actual fraud in the trans- 
action the judgment of the directors as to the value of the 
property purchased shall be conclusive." '' The secretary 
of state of Maine sent out circulars stating that corpor- 
ators might incorporate originally, or increase their capital 
to an unlimited amount and issue stock for property or ser- 
vices, and the judgment of the directors as to the value of 
such property or services is conclusive, the stock thereupon 
becoming fully paid. Incorporation might be completed in 
three days ; no part of the capital need be paid in before 
commencing business ; business might be done anywhere in 
the world ; persons not residents of the state might be elected 
as directors, or to any other office (save clerk) ; the corpor- 
ation might create preferred, common or any other class of 
stock and regulate the voting power ; might change the par 
value of their shares ; might purchase and sell the stocks of 
other corporations; might validate meetings defectively 

1 L. & N. Railroad Co. vs. Ky., 161 U. S., 677. Freund, op. cit., p. 367. 
- Horack, op. cit., p. 29. s /^/J,^ p_ 71. 



471] LIBERTY TO OWN CORPORATE PROPERTY 127 

called, by written consent thereto, in person or by proxy; 
need not file lists of stockholders.^ Some states do not limit 
the amount of the capitalization. The " corporation states " 
aid consolidation by allowing corporations to own the stock 
of other corporations. With these possibilities of incorpor- 
ation in some states and the constitutional right to engage 
in business in any state, with power to sue in the federal 
courts as a citizen of the state in which it was incorporated, 
the state in which it exists, it is inconceivable that corpor- 
ate ownership could be freer than it is. 

So great liberty has been attained in the capitalization of 
relations that it has been charged, whether justly or not, 
that one-half of the capitalization of railroads originally 
represented nothing tangible, is in effect " capitalized extor- 
tion." Thus also the American tin-plate companies with a 
total capitalization of from $3,000,000 to $4,000,000 be- 
came the American Tin Plate Company with a capital of 
$50,000,000. The preferred stock ($20,000,000) sold at 
95. The promoters got $4,000,000." Above the $5,000,000 
original capital, what was it that was owned ? Thirty-nine 
of the trusts mentioned in the Report of the Industrial Com- 
mission had property worth 64.42% of the nominal capitali- 
zation.' It is the relation, the command over men, the earn- 
ing power — and sometimes the power to deceive — that are 
salable. The value of such ownership is in the ability to 
make the service control the patronage. Moreover the con- 
trol of 60,000 laborers exercised by a corporation like the 
Standard Oil is a social sovereignty; and this virtual owner- 
ship of its servants is essential to property in industrial op- 
portunity. The kinship of these laborers to those of other 

1 Horack, op. cit., p. 160. 

- McVey, in Ripley, Trusts, Pools and Corporations, p. 313. 

3 Ripley, p. 123. 



128 DISTRIBUTION OF OWNERSHIP [4^3 

ages is shown in the traces of slavery in the law of master 
and servant and of principal and agent. " The status of the 
servant maintains many of the marks of the time when he 
was a slave." ^ The liability of the master for his torts is 
one instance. The survival of the individualistic idea of 
freedom of contract secures this sovereignty. Political do- 
mination by corporations is all but the rule in America. Of 
twenty-six suits brought under the Sherman Anti-Trust 
Law ten were won by the government, four of these being 
against laborers." 

This power is not infrequently exercised as freedom from 
either political or economic responsibility. Attorney Gen- 
eral Knox said to a committee of the United States Senate:^ 
" The officers or agents of such incorporated company, who 
grant the rebate or make the unlawful concession in rates 
are subject to indictment or punishment. That however is 
generally an impracticable remedy, because the agent who 
makes the concession is generally the only person by whom 
it can be ascertained that the rebate has been paid ; and when 
he has testified in relation to the matter, he has thereby 
obtained amnesty from prosecution." Thus the officials of 
the " Beef Trust " recently escaped penalty on the ground 
that testimony given by themselves entitled them to im- 
munity. Such superiority to the powers of government il- 
lustrates the extreme of freedom of property. The ability 
of the chiefs of corporations to substitute agents for them- 
selves in matters at law seems to support the definition of 
ownership as a control of men rather than of objects. 

Courts have declared against boycotts of any business. 
Statutes explicitly say that a combination of persons may 

1 Holmes, Common Lazv. p. 228. 

2 Moody, Truth about the Trusts, p. 498. 
^ Ripley, op. cit., p. 284. 



473] LIBERTY TO OWN CORPORATE PROPERTY 129 

not agree " not to patronize, trade or do business with any 
such individual, firm or corporation, or to induce others not 
to so patronize, trade or do business with any such individ- 
ual, firm or corporation." ^ Thus a sort of property right in 
patronage is secured. This is protected also by statutes 
against unlawful conspiracy, threats, coercion and intimida- 
tion. Acts inimical to ownership may also be restrained by 
injunction of the courts. Violations of injunctions are in 
contempt of court, and make possible punishment without 
prescribed penalties or jury. This instrument has been 
more used in the last ten years than ever before. In 1894 
by the Debs injunction " interference with a large number 
of the most important railroads of the country, or with 
trains engaged in interstate commerce or carrying the 
mails " was prohibited. This injunction also prohibited all 
persons from compelling, or inducing by threats, persuasion 
or intimidation any of the employes of the railroads to re- 
fuse to perform their duties or to quit employment, and 
prohibited almost as broadly efforts to prevent persons from 
entering employment." " In this way have been prohibited 
boycotts, picketing or strikes and in one or two instances the 
paying of strike benefits by labor unions.^ " Freedom of 
contract " tends to secure the jus abutendi. American em- 
ployers are less liable for damages than those of England. 
It must be established that the owner's negligence was re- 
sponsible for the injury. *' Fellow employes' " negligence 
releases employers from common law liability and cuts off 
the larger number from redress for injury.* 

The natural result of liberty is excess. Competition led 
to the success of the stronger and then to concentration of 

1 Colorado Acts of iSgy, ch. 31, sec. 3. 

2 Ind. Com. Rep., xix, p. 933. ^ il,id., xix, p. 886. 
* Ind. Com. Report, xix, p. 933. 



130 DISTRIBUTION OF OWNERSHIP [474 

management under the stronger. The present regimenta- 
tion of industry is at once the completion of hberty and the 
chief force in its limitation. Thus competition was the ruin 
of many whiskey dealers. In 1882 the Western Export- 
ers' Association prorated production among the dealers ac- 
cording to demand, allowing each to work only from 287^ 
to 40% of its capacity. In the seventies the overproduction 
of oil led to informal agreements of the producers, limiting 
competition, receiving concessions from the railroads in re- 
turn for aiding the pooling of the railroads to prevent their 
insolvency through competition. Other industries were 
pooled. Pools soon dissolved, however, through having no 
more substantial support than commercial honor, through 
shortsighted extortion and through legal opposition. In 
1882 the oil producers organized the first " trust," by which 
nine trustees received in trust an assignment of the stock 
of the parties with voting powers. This was followed by 
eighty distilleries of which all but twelve were closed ; then 
by the Sugar Refineries Company. Legal opposition de- 
stroyed the trust, but did not destroy the established har- 
mony of management. In 1892 Standard Oil being dis- 
solved, the holders of trust certificates received proportion- 
ate shares in each of the twenty constituent companies, es- 
tablishing " community of interests," under the manage- 
ment of nine men. This sufficed for seven years. The 
railroads also used this device. But " community of inter- 
est " being precarious, the reorganization of these com- 
panies as single corporations was necessary. Thus in 1890 
the Distillers and Cattle Feeders' trust was incorporated 
in Illinois as the American Distilling and Cattle Feeding 
Company with $35,000,000 capital. Without the necessity 
of complete absorption of the constituent companies, " hold- 
ing corporations " were invented, by which not an " illegal 
conspiracy " of several persons or corporations, as in the 



475] LIBERTY TO OWN CORPORATE PROPERTY 131 

" trust," but a single corporation holds a voting majority 
of the shares of several corporations. This was made law- 
ful in 1889 in New Jersey and was sustained by the Su- 
preme Court/ 

The movement belongs to the latter part of the nineteenth 
century. From i860 to 1887 there were but six of the in- 
dustrial concerns of the magnitude now known as trusts. 
Sixty-three trusts had been organized before 1897. In three 
years 183 trusts in all branches of industry were organized 
with a capital of over $4,000,000,000. Thus while in i860 
there were 2,116 agricultural machinery plants with an aver- 
age capital of $6,500, eight employes and an annual product 
value of $9,800, now there are 715 with an average capital 
of $220,000, 65 employes and an annual product of $147,- 
000. The United States Steel Company was organized in 
1901 with a capital of $1,404,000,000. The Illinois Cen- 
tral Railroad with seven hundred miles was at one time 
one of the greatest roads in the world. In the next twenty 
years five thousand mile systems were developed. From 
1890 to 1898 these grew to ten thousand mile systems. 
These have given space to twenty-five and fifty thousand 
mile systems. It is said that two groups of financiers rule 
the country industrially. This concentration, with its at- 
tendant political influence and its appropriation to private 
ends, at once shoAvs the extreme of liberty of property and 
the most potent limitation of that liberty to many owners 
and ultimately, of course, to those exercising monopoty. 

Ownership in America was freer in all forms than in 
England through the application of the growing English 
liberty, law and custom to a less limited land. Definite- 
ness was given to liberty by the unity of American govern- 
ments. Direct ownership reached its greatest attainable 

lU. S. vs. E. C. Knight Co., 156 U. S.. i (1895). 



132 DISTRIBUTION OF OWNERSHIP [476 

freedom in slavery. Land is as nearly as possible a chattel, 
free from the claims of struggling neighbors and command- 
ing their services, and more sacred from trespass than per- 
son is from assault. Ownership in corporations has been 
given the greatest liberty possible in an associated form of 
ow^nership, and the number of corporations has grown from 
almost none at the adoption of the constitution to about 50,- 
000, controlling four-fifths of the industry of the country.^ 
This liberty and power of property is the greatest in history 
and has marked the time of our industrial development, of 
unconfined activity, of Spencerian " disintegration," or free- 
dom of the parts, through looseness of the mass. 

1 Baldwin, Modern Political Institutions, p. 62. 



CHAPTER VIII 
Limitation of Slave Ownership 

Possibly an examination of the conditions of ownership 
in America will disclose at least the beginning of a period of 
limitation of ownership in its completest form. 

The result of the civil war was at once the culmination 
of the unity necessary to national guarantee of liberty of 
property and the effectual limitation of the first form of that 
liberty. Early abortive opposition to slavery has been re- 
ferred to. It is not possible to assign its actual influence 
to the common provision of jury trials for negroes, and 
such provisions as that of North Carolina (1834) in giving 
the slave a right to protect himself from murderous as- 
sault by his master. All the states punished inhumanity to 
slaves, just as cruelty to animals is a crime, thus limiting 
jus ahutendi. 

Ownership of no kind was ever long unquestioned save 
in despotisms. From the time of the Quaker societies in 
Pennsylvania with their petitions, their " unconstitutional 
requests," odious to the south, the abolition movement 
grew. Early societies were the New York Society for Pro- 
moting the Manumission of Slaves in 1797 and the Ameri- 
can Colonization Society in 18 16. A Virginia legislator 
said after the uprising of Nat Turner (1831) : " Spare us 
the curse of slavery, that bitterest drop from the chalice of 
the destroying angel." It is customary to disparage the 
abolitionists. But whatever their influence, dragging Gar- 
rison by the neck did not choke the sentiment, nor did 
477] . 133 



134 DISTRIBUTION OF OWNERSHIP [478 

Georgia's offer of $5,000 reward to any one who should 
bring him to Georgia to be judged according to its law 
increase the prestige of man stealing. The murder 
of Lovejoy by the " saviors of organic institutions " did not 
stifle agitation. Gag rules in Congress failed to stifle peti- 
tion or to silence John Quincy Adams. 

Governmental agencies were not wanting for the viola- 
tion of the fugitive slave law. The underground railway 
was protected in the same way as the over-sea slave trade 
had been, in spite of the law. Various states passed " per- 
sonal liberty laws " to defeat the fugitive slave laws and to 
protect free negroes from kidnappers. Thus Indiana, New 
York, Connecticut and Vermont provided jury trial for the 
fugitives and fined officials of the state for assisting in fugi- 
tive slave cases. In 1837 Ed. Prigg, attorney, sent Mar- 
garet Morgan back from Pennsylvania to her mistress in 
Maryland five years after her escape. This conflicted with 
a law of Pennsylvania of 1826 forbidding the taking of 
negroes out of the state for enslavement. The United 
States Supreme Court (1842) announced that the fugitive 
slave law of 1793 could be carried out by national authority 
alone. ^ This made a dead letter of the old law. Massa- 
chusetts ( 1 843 ) , Vermont ( 1 843 ) , Pennsylvania ( 1 848 ) , 
Connecticut (1846) prohibited state officers from assisting 
in such cases and forbade the use of state jails. The second 
and more severe fugitive slave law of 1850 caused more 
" personal liberty bills," by which judges were forbidden to 
take cognizance, the writ of habeas corpus was employed, 
jury trial was secured, the use of jails was forbidden and 
attorneys were provided for the fugitives. In answer to 
the demand of the governor of Virginia for the return of 
slaves the governor of New York replied that no state could 

1 16 Peters, 68. 



479] LIMITATION OF SLAVE OWNERSHIP j^^ 

demand the return of a fugitive from justice for an act 
which was criminal only under its own legislation/ Gov- 
ernor Bell of Ohio (1848) refused Kentucky the extradi- 
tion of fifteen persons charged with aiding the escape of 
fugitives on the ground that the laws of Ohio did not re- 
cognize propert}^ in men." Slavery was never a national, 
but only a municipal right. The states of the north had 
constitutionally abolished slavery. 

The Civil War was in part an "industrial revolution." 
Capitalization of labor was no longer economically justifi- 
able, and the mechanical north was strong enough to en- 
force its will upon the agricultural south. The legal steps 
crystallizing the rapid effects of force were : the forfeiture 
of the claims of the master of a servant employed against 
the government (August 6, 1861), proclamations of eman- 
cipation by General Fremont in Missouri (August 6, 1861) 
and by General Hunter in South Carolina (May 9, 1862), 
which were disallowed by the government ; the prohibition 
of the army from returning slaves (March 13, 1862) ; a 
congressional resolution in favor of compensation to states 
emancipating slaves gradually (April 10, 1862) ; abolition 
in the District of Columbia (April 16, 1862), in the terri- 
tories (June 19, 1862) ; the freeing of the captured, de- 
serted or fugitive slaves of rebels (July 17, 1862) ; the 
emancipation proclamation (January i, 1863) ; the abolish- 
ment of the fugitive slave law (June 28, 1864). The 
Xlllth, XlVth, XVth amendments completed the trans- 
formation of property into property owners so far as that 
might be done by legislation. There was confiscation in the 
change. In the XlVth amendment it was declared : " But 
neither the United States nor any state shall assume or pay 

1 McDougall, Fugitive Slaves, p. 70. 
- Ibid., p. 41. 



136 DISTRIBUTION OF OWNERSHIP [480 

any debt or obligation incurred in aid of insurrection or 
rebellion against the United States or any claim for the 
loss or emancipation of any slave, but all such debts, obliga- 
tions and claims shall be held illegal and void." Georgia 
and Maryland did not waive the claim for compensation. 
In Arkansas in March, 1861 a slave was sold warranted for 
life. After the adoption of the amendment, action was 
brought for a promissory note given in payment. The con- 
tract was sustained, but it was held " that the warranty of 
the slave for life was not a warranty of continuity of title 
against the acts of sovereign power." ^ 

" The half of manhood which Homer says slavery takes 
from a man cannot be restored by merely putting on him 
the cap of liberty." ~ The negro had been prepared for 
freedom in the school of oppression and sometimes exercises 
license as his master taught it to him. Responsibility will 
be realized with ownership. Many negroes are, tlirough be- 
ing propertyless, kept in slavery by the crop lien and peon- 
age systems, by which men are held to labor for creditors, 
and by fraud are kept in debt perpetually. But there is a 
rapid increase in the ownership by negroes. Thus Ken- 
tucky colored men own 171,570 acres of land. Philadelphia 
negroes own $5,000,000 of property.^ In 1874 negroes 
owned one in every eighty-five acres of improved land in 
Georgia; in 1880 one in fifty; in 1890 one in thirty-one; 
in 1903 one in twenty-five.'* The political dominance of 
the aristocratic class has been greatly diminished, in con- 
sequence of the end of complete ownership in America. 

1 Osborne vs. Livingstone, 13 Wallace, 654. 
- Goldwin Smith, United States, p. 266. 
3 DuBois, The Philadelphia Negro, p. 179. 
* Banks, Land Tenure in Georgia, pp. 69-70. 



CHAPTER IX 

Limitation of Land Ownership 

Any assertion of a definite period of limitation of the 
powers of land ownership must be made with hesitation. 
Limitation is, rather, inherent and constant. Private prop- 
erty can scarcely exist in land. Austin says : " By abso- 
lute property in a movable thing we mean what the Roman 
lawyers called dominhun or proprictas. But in strict law 
language the term is not applied to a right or interest in 
immovables." The Vermont constitution declares that 
" property ought to be subservient to public uses." ^ " It 
is competent for every state to impress upon all property 
within its territory any character which it may choose." " 
Some of the social subtractions from individual interests 
in land may here be put together, leaving it for legal stu- 
dents to determine the present relative position of liberties 
and limitations on land ownership. These " public par- 
tial rights " are enforceable under the police power of the 
state under whatever may be the state's current " public 
policy." Salus popiili suprema lex. 

Social subtractions from private ownership are: (a) 
from the right of possession (and use) : (i) for public (or 
private benefit) : eminent domain; escheat; fines and forfeit- 
ures; taxation; (2) for private benefit (publicly enforced) : 
adverse possession ; future and conditional estates ; liens ; 

^ Cons. 'i^777, I, ii. 

2 McCollum vs. Smith, 19 Tenn., 342. 

481] 137 



138 DISTRIBUTION OF OWNERSHIP [482 

contracts; tenancy; (b) from the right of use: easements; 
right of way; pledges; nuisances; police regulation; public 
policy; (c) from the right of disposition: inheritance; rule 
vs. perpetuities ; inheritance tax ; restrictions on transfer. 
Some of these, to be sure, are named only to make the list 
of opposing claims complete, without regard to the pres- 
ent greater or less extent of their operation. 

All titles to land are in theory from the state; and the 
state resumes its own by escheat, by forfeitures, by emi- 
nent domain, by tax, by voluntary transfer. The Tahiti 
chief asks his subject: "Whose pig is that?" The sub- 
ject replies: "It belongs to thee and to me." Civilization 
reverses the pronouns. The Caledonian chief dines off his 
subject and salts the rest of him down. This is a case of 
eminent domain where land has no value. The civilized 
state pays for what it takes, although in some states the 
onus of instituting proceedings to ascertain ' and enforce 
compensation is put upon the owner. ^ " The owner of 
private property holds it also subject to a paramount right 
of the government to appropriate it without his consent." ' 
Thus Massachusetts allows the commonwealth or a city 
to take the whole of any estate part of which is actually 
required for a public work, if the remnant left after taking 
such part would from its size and shape be unsuited for the 
erection of suitable and appropriate buildings.^ Private 
advantage, as the profit of a railroad corporation, may ac- 
crue from the exercise of right of eminent domain granted 
it by the state. Thus in Wisconsin a railway company 
may condemn land for the construction of branches and 
spur tracks from any existing road to and upon the ground 

1 Tiffany, Real Property, ii, p. 1071. 
- McClain. Constitutional Law, p. 100. 
•■' A^. Y. Lib. Bill, of Leg., 25 63. 



483] LIMITATION OF LAND OWNERSHIP 1^9 

of any mill, store house, manufacturing establishment and 
the like/ The right has even been granted for the erec- 
tion of a mill.- The right may be granted to private in- 
dividuals to accomplish any purpose for the public good.'" 
" It is not requisite that the use and benefit to be derived 
shall be universal nor in the just sense even general." ^ 
" It has been held that a road primarily for the accommoda- 
tion of a single family does not effect its character as a 
public highway.^ Compensation is not invariably secured 
for "consequential damages." Thus the owner of land abut- 
ting on a highway is not entitled to compensation for the 
loss of value caused by a change of grade. '^ 

The failure of heirs causes the land to revert to the 
state as its ultimate owner. Since a state is the sovereign 
owner, a change in the political sovereignty of any region 
produces a change in the individual property in that re- 
gion. Thus the early jurisdiction over Vermont was dis- 
puted between New York and New Hampshire. During 
the controversy settlements were made on tracts granted 
by each government. Upon the establishment of the claim 
of New York, those who did not take out new patents were 
dispossessed by rival claimants.' The Revolutionary war 
was accompanied by the confiscation of the property of 
royalists.* The confiscations of proprietary lands succeed- 
ing the war have been referred to. " The revolution in 

1 Statutes 1898, par. 1831a. - 15 Wallace, 500. 

^ Am. and Eiig. Enc. of Law, x, p. 1059. 

* Haswell vs. Armstrong, 19 N. Y., 1063, cited in Am. and English 
Enc. of Lazv, x, p. 1063. 

^ Am. and Eng. Enc. of Lazv, x, 1074. 

6 Tiffany, Real Property, i, p. 816. 

''' Hough's Constitutions, footnote under Vermont. 

'^ Tiffany, op. cif., ii, p. 1051. 



I40 DISTRIBUTION OF OWNERSHIP [484 

property as well as the revolution in government which 
was produced by the separation of the United States from 
the mother country introduced a state of things for which 
in many respects no other country can furnish a precedent. 
Many persons never took possession of lands to which they 
were entitled, or abandoned their possessions and have never 
preferred claims since. Others lost evidence of theirs and 
therefore were deprived of the means of prosecuting their 
rights where they were so disposed." ^ Property in the 
south was violently disturbed in consecjuence of the revolu- 
tion of government by which the carpet baggers came in 
power and plundered the owners by means of confiscations 
for taxes. Thus in Mississippi 640,000 acres were for- 
feited for taxes." South Carolina's tax in 1871 was $2,- 
000,000 on a value of $184,000,000. In i860 it had been 
$400,000 on a value of $490,000,000. The debt of Louis- 
iana grew from $6,000,000 in 1868 to $50,000,000 in 1872." 
This confiscation was analogous to the confiscation of 
slaves. Reference will perhaps not be allowed to the dis- 
possession of Indians. 

Property is subject to fines, forfeitures, or pecuniary 
amercements for crime, by which the outer personality of 
the rich receives the punishment given to the actual or 
inner personality of the propertyless. Thus land acquired 
by corporations in violation of the law may be forfeited in 
some states.^ Where one fraudulently or wrongly mixes 
his goods with those of another so that the goods cannot be 
distinguished, the wrongdoer forfeits all of his property in 
the mixture to the other party.* 

iWilkins vs. Tart, 3 C. C. 518. 

2 Wilson, W., United States, v, p. 47. 

3 Tiffany, op. cit., ii, p. 1051. 

'*^ Am. and Eng. Enc. of Lazv, vi, p. 595. 



485] LIMITATION OF LAND OWNERSHIP 141 

The power to tax has been called the power to destroy.'' 
" It (taxation) may be carried to any extent within the 
jurisdiction of the state or corporation which imposes it, 
which the will of such state or corporation may prescribe." " 
If not otherwise enforceable taxation may be enforced by 
tax sales by which not only the tax, but sometimes part of 
the value of the property is taken from the owner. Such 
use of the property as destroys the value of the public in- 
terest in it may be restrained. It was held in New York 
that an owner of timber upon which the tax was unpaid 
might be restrained from cutting bark and so damaging the 
state's property. It is competent for the legislature to re- 
strain acts which would strip the land of its chief value and 
tend to make unavailing the final remedy." ^ In nearly all 
of the states there are statutes giving preference to taxes, 
rates and other debts due to the state over the debts of the 
citizens. The national government has an undoubted right 
under the constitution to enact laws by which debts due to 
it shall be preferred to those of other creditors.* In feudal- 
ism the benefits, subsidies and reliefs given to the lord es- 
tablished his claim to them. So in New England the 
" peck of wheat from every one whose heart was willing " 
for the support of poor scholars in Harvard College soon 
became a less voluntary offering. ° The development of 
private liberty to some extent before the completion of 
political unity caused Americans to offer more resistance 
to taxation than did the English. Before 1789 Congress 
could not enforce taxation. The first direct tax of Penn- 
sylvania was levied in 1785. There are few instances of 

1 McCuUoch vs. Md., 4 Wheaton, 316. 

2 Weston vs. City of Charleston, Lalor's Encyclopedia, " Taxation."" 

3 III N. Y., 460. ■* Am. and Eng. Enc. of Lazv, xxix, p. 162. 
^ Ely, Evolution of Industrial Society, p. 37. 



142 DISTRIBUTION OF OWNERSHIP [486 

State taxes in Maryland before 1841/ Valuations and usu- 
ally assessments were arbitrary, upon selected objects rather 
than upon all property. Thus Connecticut assessed ac- 
cording to the mode of culture. Subsequently while 
private property was developing absoluteness taxation also 
became a system. This system makes a more or less futile 
effort to respect private property by uniform taxation of 
all property on its selling value. The increasing difficulty 
and dissatisfaction attendant upon our tax system in the 
second half of the national history, when property cannot 
be found as easily as it once could, indicates the changing 
and less definite character of property. Taxation, even 
when it is increasing in amount, may be a less limitation on 
the prevalence and security of the idea of private property 
than is the inequitable administration of taxation. Bad 
distribution tends to instability of property. The theory 
of adjusting the tax to the ability of the taxed is every- 
where met by the fact that cupidity increases with acquisi- 
tion. Indirect taxation taxes the poor in behalf of the 
rich. Tangible property pays more than personality. 
From Maine to California there is but one opinion of the 
present system. That is that it is inequitable. A West 
Virginia, judge says: " The richer the man the less the tax 
in proportion to his property." ^ 

Possible socialization of taxation appears in the advocacy 
of progressive taxation, which recognizes that ability to 
pay increase faster than fortune, because the later additions 
to capital are easier than the first acquisitions ; and that the 
accumulation is that by capital rather than by man. Hence 
justice requires more than proportional taxation. Other 
indications of socialization through taxation are in the 

^ Ely, Evolution of Industrial Society, p. 45. 
2 Quoted in Ely, Taxation, p. 152. 



487] LIMITATION OF LAND OWNERSHIP 143 

increasing- of inheritance taxation; in tax inquisition by 
private detectives ; in the character of the tax exemptions 
and in the social purposes to which taxation is increasingly 
applied. The exemption of social property from taxation 
is an imposition on private individual property. Exemp- 
tions are given increasingly in various jurisdictions to bury- 
ing grounds, public school grounds, school buildings and 
apparatus, libraries, churches, property used for religious 
purposes, public hospitals, academies, colleges, universities 
and seminaries, public libraries, books, paintings and statu- 
ary in free public halls, institutions of purely public charity, 
public property, property held for scientific, literary or fra- 
ternal purposes, and a limited amount of individual per- 
sonal property. Governmental expenditures for purposes 
that may be distinguished from purely protective and ad- 
ministrative purposes are proportionately increasing. Such 
expenditure gives some economic security to the property- 
less at the expense of property. The expenditure of the 
United States, exclusive of post ofifice expenses and pay- 
ments of the principal of the public debt, has increased from 
$2.04 per capita in 1800 to $6.39 in 1900 and $5.96 in 
1902.^ States have levied taxes for all social purposes 
from maintaining universities to buying wooden legs for 
confederate soldiers. Expenditures per capita of the 
school age (5-8) increased from $5.62 in 1871 to $11.86 
in 1904." The maintenance of agricultural, commercial 
and normal schools from taxation must influence distribu- 
tion. In the latter part of the nineteenth century agricul- 
tural colleges were established in every state and terri- 
tory. From five to three hundred farmers' institutes are 
held annually in each state, usually at public expense. 

1 Bullock, Readings in Public Finance, p. 40. 
" Suiniiiary of the Statistical Abstract, 1905. 



144 DISTRIBUTION OF OWNERSHIP [483 

Aside from the tariff, whose benefits are not difTused in 
ownership, expenditure in aid and supervision of various 
industries tends to sociaHzation. The annual expenditure 
for the federal department of agriculture is $2,000,000. 
In 1903 fourteen states passed drainage laws by which 
majorities in communities may enforce co-operation on 
the part of all, while the arid states have irrigation laws of 
the same power. Public charities have been enormously 
increased in the latter half of the century. Thus pensions 
have been increased from $63,404,000 in 1886 to $142,- 
550,266 in 1904. In Massachusetts the largest public ex- 
pense was that for charities $2,406,934.92.^ 

In addition to the foregoing social subtractions for pub- 
lic benefit, sometimes for private benefit, there are various 
partial rights in ownership usually created by private con- 
tract or in default of private right or agreement, but pub- 
licly enforced. Moreover the state may acquire and hold 
these rights in its own behalf. These are prescription, ad- 
verse possession, future estates, conditional estates, trusts, 
mortgages, pledges, liens, contracts and tenancy. All these 
voluntary reliquishments of the rights of ownership be- 
come legal limitations of the privileges of the owner. All 
disposable partial rights are called property. Thus a tenant 
for life, a tenant for years, a tenant in common is called 
an owner.- Land is increasingly subject to these incor- 
poreal rights. 

Open and continuous adverse possession for a statutory 
period, usually twenty years, bars the owner's right. Thus 
if a tenant disclaims to hold of a landlord and the landlord 
does not recover the statute of limitations begins to run.^ 

1 Bullock, Readings in Public Finance, p. 664. 

2 Am. and Eng. Cyc. of Lazv, " Titles. Ownership and Possession."' 

3 Tiffany, op. cit., ii, p. loio. 



489] LIMITATION OF LAND OWNERSHIP 145 

An ownership may be the possession of only a reversion, 
or residue of estate remaining in the grantor after some 
lesser estate has passed. It may be a vested remainder, an 
estate dependent upon some future event, and created by the 
act of the parties, commencing after the determination of 
a previously limited estate in the same subject of property. 
It may be a contingent remainder, or one dependent upon 
an uncertain future condition. The partial interest may 
be an executory devise, one that does not depend upon the 
determination of a particular or previously defined estate, 
but upon some future contingency, or at some definite 
time in the future. Conditional estates — ^those that re- 
vert upon the failure of a certain class of heirs — may be 
created without regard to common law rules. ^ Such par- 
tial estates must evidently diminish the definiteness of pri- 
vate property. 

The laws of mortgages have tended to greater security 
of ownership. But the mortgage remains an instrument 
of limited ownership. Mortgages are jura in re alieno. 
Title but not possession passes. In pledges on the other 
hand, possession but not title passes. A lien is a right to 
retain possesion of the property of another as security for 
some debt or charge. Land was formerly not subject to 
liens for simple contract debts, but only for debts under 
sealed contract binding the heirs. Now in all states it is 
equally liable with personalty. It is subject to certain statu- 
tory liens, judgment liens, or charges upon all the property 
of the debtor for periods varying from one to twenty years ; 
to mechanics' liens on constructions by them; to attachment 
liens levied on property auxiliary to recovering money. 
Property is subject to the writ of attachment by the sheriff 
during an action, in satisfaction of demands by a plaintiff, 

1 Tiffany, op. cit., i, p. 344. 



146 DISTRIBUTION OF OWNERSHIP [4^0 

who usually must be a creditor ; in some states, for the pay- 
ment of a debt not yet due, under peculiar circumstances, as 
upon an absconding debtor.^ Property is subject to at- 
tachment by garnishment, or taking the property of a de- 
fendant, which is found in the hands of a third person. 

To understand clearly how all these " incorporeal here- 
ditaments " constitute partial ownership of the man subject 
to them, it is necessary only for him to leave his debts or 
his taxes unpaid. He will find that the " due process of 
law " gives little more protection to him than it does facility 
to his creditor. In recent constitutions there is a general 
tendency in the interest of the debtor class." This parallels 
the ancient effort of Solon to mitigate private property. 
Of contracts in general it may be said that whether they 
arise voluntarily or by compulsion, contracts with con- 
sideration, or amercements are, until performed, charges, 
limitations, partial rights in ownership of one or both the 
parties contracting, and may frequently greatly obscure 
individual ownership. 

The destruction of feudal tenures was part of the de- 
velopment of private property in land, but tenancy, legally 
protected, cannot disappear as a limitation on private prop- 
erty. It is a necessity both to the enjoyment of extensive 
property and to the tenant's life and civil status, for men 
must live on and from the soil. Thus a new form of estate 
was made necessary by the economic rearrangement of the 
south, upon the loss of slaves. In Georgia by the laws of 
1866-74 liens were allowed to landlords on the crops of 
tenants for stock, farming utensils and provisions. These 
aid in the establishment of a species of serfdom. 

The tenant has his rights of possession, use and disposi- 

1 Bouvier, Law Dictionary, i, p. 188. 

- Baldwin, Modern Political Institutions, p. y^- 



49 1 ] LIMITATION OF LAND OWNERSHIP j^y 

tion. Courts of equity disfavor joint tenancy. On eviction 
a tenant has a right of action on a covenant for quiet en- 
joyment. Even a tenancy at w^ill cannot be terminated 
without notice sufficient to protect the tenant's right to 
crops. ^ In some states an owner is hable for damages for 
forcible entry without legal process, the tenant holding over 
without consent." In most of the states compensation for 
improvements made by tenants is estimated by courts or by 
express legislation." The tenant has property rights to 
use. The tenant may cut timber for reasonable uses or 
by local custom,* and the general tendency of American 
courts is to restrict the English law of waste and to stimu- 
late development by the tenant in possession.'^ The lessee 
may assign his lease to heirs, or in the absence of condi- 
tions, he may sublet. Even the tenant by the year may as- 
sign or bequeath his tenancy. Increase in tenancy, by 
compounding claims, portends a change. Less than one- 
third of American families own unmortgaged homes. 
From 1850 to 1880 the tendency was to diminution in the 
size of farms. Since that time the tendency is in the op- 
posite direction. The distribution according to tenure is 
as follows : 

Owners. 

1880 74-5% 

1890 71.6 

1900 64.7 

The increase of the proportion of tenants is probably from 
the ranks of the laborers. 

Various subtractions made primarily from the enjoy- 

1 Tiffany, op. cit., i, p. 142. 2 Ibid., i, p. 156. 

3 Ibid., i, p. 553- * Ibid., i, p. 561. 

5 Ibid., i, p. 566. ® Xllth Census, v, p. 689. 



h tenants. 


Share tenants. 


8% 


17-5% 


10 


18.4 


I3-I 


22.2 ^ 



148 DISTRIBUTION OF OWNERSHIP [4^3 

ments of ownership may be roughly classified under : ease- 
ments ; the restraint of nuisances, and building and sani- 
tary laws or police regulations. 

All states have a right of way over all territory within 
them. The right to pass over another man's land may be 
acquired also by an individual. Easements are rights 
which " one proprietor has to some profit, benefit or bene- 
ficial use out of, in or over the estate of another pro- 
prietor." ^ Thus it may be a right to prevent a man from 
building a wall on his own land beyond a certain point, the 
right of way for a mill race, for artificial channels, to take 
water from a premise. Such rights as these render one 
property servient to another or dominant tenement. They 
are called variously : easements appurtenant, or those at- 
tached to some superior right ; easements in gross, rights 
attached to persons rather than to property in land ; affirma- 
tive easements, or those giving right to some active use of 
the land of another ; and negative easements, or restrictions 
on the use of the servient tenement. These rights can not 
lawfully be altered by either proprietor. They are acquired 
by grant, by prescription, by legal condemnation. Other 
similar rights are licenses to do certain things on the lands 
of another; customs, which are not definitely attached to 
land; the "natural rights" of lateral support of land in 
its natural condition, of the lower riparian owner to re- 
ceive the undiminished flow of a natural water course ; of 
the upper tenement to discharge surface water upon the 
lower tenement ; and profits a prendre, which, contrary to 
easements, are rights to profit in the land or produce of 
another. Covenants running with the land, as to repair 
dams, pass to a transferee in this country. 

The state enforces a various and increasing number of 

1 Am. and Eng. Cyc. of Lazv, " Easements." 



493] LIMITATION OF LAND OWNERSHIP j^g 

limitations on uses for the benefit sometimes of a large, 
sometimes of a small number of people to whom the pro- 
hibited use is obnoxious. As every citizen is theoretically 
bound to conduct himself in a way that does not infringe 
upon the rights of others to conduct themselves accord- 
ing to their legitimate desires, so every citizen holds his 
property subject to the implied obligation to use it in such 
a way as not to prevent others from the enjoyment of their 
property. The infringement of either the personal or the 
property enjoyment of another is called a nuisance. What 
may constitute a nuisance depends upon its location and the 
prsvailing sentiment with regard to the desirability of the 
thing in question. What is allowed in one place may be 
condemned in another. Thus coal burning was once a 
nuisance in England and Edward III issued a proclama- 
tion against it. It may be a disorderly house, or a fer- 
tilizer or soap factory or the like. Glass factories, black- 
smith shops, potteries indeed have been condemned as 
nuisances. It may be the use of powder magazines, animal 
traps, barbed wire fences; maliciously erected fences; dust 
from carpet cleaning; unnecessary and even sometimes ne- 
cessary, noises ; keeping a hot cookstove near a partition ; 
offensive odors. Innumerable similar uses of property have 
been condemned by abatement, by injunction, by suit for 
damages. If surrounding sensibility or property is injured, 
neither intention, nor careful conduct, nor legality of the 
business, nor the existence of similar nuisances nor prior- 
ity of location is a defense, nor a security against abate- 
ment, fine, damages or imprisonment. 

Under police regulation and building laws the owner may 
be restrained from uses of his property that are not in ac- 
cord with the local usage, and he may be subject to taxes 
other than pecuniary taxes, such as the duty of keeping side 



150 DISTRIBUTION OF OWNERSHIP [4^4 

walks clean and in repair. He may be required to bear the 
cost of official supervision. 

Certain restrictions on the use of property, like agree- 
ments by purchasers of uniform lots restricting their future 
use, are enforceable in equity. 

Restrictions on disposition are inheritance laws and taxes, 
and restrictions on transfer. " The most universal and ef- 
fectual way of abandoning property is the death of the 
occupant." ^ Prescriptions of inheritance, looking to redis- 
tribution of property, are increasingly imperative and prev- 
alent. " The laws of descent and devise being the creation 
of the statute law the power which creates may regulate 
and may impose conditions or burdens on the right of suc- 
cession to the ownership of property to which there has 
ceased to be an owner." " The greater freedom of be- 
quests is at the same time an increasing limitation on exist- 
ing private property. The right to receive lands and tene- 
ments by bequest is limited in but few states, and our legis- 
lation shows a constant tendency to preserve for public and 
charitable uses, funds which have once been appropriated to 
such uses against the attacks of disappointed heirs. ^ More- 
over the will has less extension into the future than form- 
erly. It is impossible to say whether this is more a limi- 
tation or a liberty of property. It limits the power of the 
dying while increasing the power of the living. And the 
rights of inheritance are preserved by the interpretations of 
wills whenever possible. American legislation especially 
protects the rights of children. Most states protect chil- 
dren not provided for in the will. Some states revoke such 

1 Blackstone, ii, ch. i. 

2 Knowlton vs. Moore, 177 U. S., 41, cited, Ely, Industrial Society, 
p. 278. 

* Daggett, in Two Centuries of Am. Laiv, p. 200. 



495] LIMITATION OF LAND OWNERSHIP j^i 

a will/ The issue of children deceased before the testa- 
tor is protected/ Thelusson's Act of 1800, which has been 
followed in some states, restricts the period in which an 
estate may accumulate to the life of the giver or to twenty- 
one years after the death of the giver or during the min- 
orities of any living at his death or to the minorities of 
those entitled to the income of the fund. Plato states the 
principle of inheritance laws : " O my friends, we will say 
to them (the dying) hard is it for you, who are creatures 
of a day, to know what is yours, hard too, as the Delphian 
oracles say, to know yourselves at this hour. Now I, as 
legislator, regard you and your possessions not as belong- 
ing to yourselves but as belonging to the state. I will 
legislate with a view to the whole, considering what is best 
both for the state and for the family, esteeming, as I ought, 
the feelings of an individual at a lower rate." ^ 

Inheritance taxes are the successors of the ancient primer 
seisin, or taxes on the death of a tenant. From the small 
tax of Pennsylvania in 1826 the inheritance tax has grown 
to a system embracing thirty states, the general advance 
being since 1890. Fourteen of these apply the tax to di- 
rect as well as to collateral inheritances. Progressive 
taxes are levied in seven states. Twenty inheritance tax 
statutes were passed in 1903 by sixteen states.^ Thus 
Oregon taxes direct inheritances of estates above $10,000, 
1% to be levied only on the excess above $5,000 received 
by each person. On collateral inheritance the rate is 2% 
on the excess above $2,000 received by each person. In 
other cases the rates are 3% on amounts between $500 and 
$10,000; 4% on amounts between $10,000 and $20,000; 

1 Daggett, in Two Centuries of Am. Law, pp. 188-9. 

- Laws, xi, 923. 

3 N. Y. Lib. Bui of Leg., 22, ^27. 



152 DISTRIBUTION OF OWNERSHIP [4^5 

5% on amounts between $20,000 and $50,000 and 6% on 
all amounts above $50,000. Iowa (1904)' introduced a 
discriminating rate of 20% against non-resident aliens, ex- 
cept that if they are brothers or sisters of the decedent they 
are taxed 10%. There is a marked tendency to exempt 
benevolent and charitable institutions. Thus New York 
has increased the amount of land that may be held by bene- 
volent and charitable institutions from an income of $12,- 
000 in 1875 to an income of $500,000 in 1892." The 
amount taken by government in this way was in 1900-1, 
$5,211,898.68." The state took from the estate of Cornelia 
M. Stewart $300,410.32; of Henrietta A. Lenox, $234,- 
126.90; of Samuel J. Tilden, $147,283; of Daniel Fayer- 
weather, $111,788.50; of William E. Vanderbilt, $81,- 

OII.55-' 

An owner may not transfer his land in fraud of credi- 
tor, or of subsequent purchasers. The OAvner is thus made 
a quasi trustee. Debtors cannot transfer land to a creditor 
within a certain time before being declared bankrupt.* In 
some states land in adverse possession cannot be trans- 
ferred. Criminals imprisoned for life lose the power of 
transfer inter vivos with other civil rights. "^ 

In consideration of the increasing intervention of gov- 
ernments in the management of natural monopolies, it may 
be better to speak of certain rights as private partial rights 
in public property than as public partial rights in private 
property. Thus game and fish are protected by closed 
seasons and by the prohibition of certain forms of hunting 
and fishing, the ownership of game not being regarded as 

1 A^. Y. Lib. Bui of Leg., 25, h;. 

2 Freund, The Police Power, p. 376. 

3 West, The Inheritance Tax, p. 86. 

•* Tiffany, op. cit., ii, p. 1107. ^ Ibid., ii, p. 1161. 



497] LIMITATION OF LAND OWNERSHIP 1^3 

private property. The ownership of clogs is only a quali- 
fied property, entitling the owner to no compensation for 
loss from the state. ^ Natural gas in the soil may not be 
wasted by the owner of the soil." A riparian owner is not 
entitled to compensation where his right of access is cut off 
by a public improvement undertaken for the benefit of navi- 
gation.^ The ownership of the natural water supply has 
been allowed in the arid states, but subject to state control.* 
Once land was a social property. Then the ancient em- 
pires made it private property. Later feudal sovereignt}^ 
attached to land; then sovereignty was conceived to be de- 
tached from land, which was then called private property. 
Finally land is being attached slowly to sovereignty, this 
time possibly to the sovereignty of the people, if the present 
democracy is real, through the exaction of the private par- 
tial rights that have been named. The landlord is at least 
beginning to be conceived as the tenant of society. The 
police power swings a larger club over the indefinite resi- 
duum of private property. 

1 Freund, p. 447. - Ibid., p. 449. 

3 Ibid., p. 428. •* Ibid., p. 440. 



CHAPTER X 

Limitation of Corporate Ownership 

The concentration of private ownership of industrial 
opportunity entails the limitation of corporate privilege. 
The declaration of independence of Thomas Jefferson and 
of Adam Smith was individual, not corporate. The mono- 
poly and abuse of corporate power obscures the right to 
private property in it. The possession, through the private 
appropriation of corporate strength, of an annual individ- 
ual income of $30,000,000, such as one man is said to have, 
— that is, at least as much as the income of thirty thousand 
ordinary men, — can no longer find any justification on the 
theory of individualism or private property, which never 
rationally contemplated any such obstruction to the liberties 
of other men. No man is by virtue of his individuality en- 
titled to so much more than the feeblest of sane men. If, 
as supposed, there is a system of collusion between the 
carriers and the large shippers for a monopoly of the 
trade and the elimination of small shippers, private prop- 
erty has passed beyond its greatest height and is no longer 
in fact private. When there is no competition there is no 
longer what has in this essay been described as a period 
of private property in commerce. Although private prop- 
erty by its very nature ultimately limits its own dis- 
tribution, the period when a relatively large number of 
men can acquire it has been called the period of private 
property. These combinations even when their stocks are 
diffused diminish the liberty of private property by the in- 
directness of tiie ownership. The minority stockholder is 
154 [498 



499] LIMITATION OF CORPORATE OWNERSHIP 153 

subject to a majority and that not of men, but of stock. 
" Shares " are taking the place of property in industry. 
The delegated management or the acquired management 
is inevitably subject to legal restriction. When one man 
can be a director in one bank, one trust company, one in- 
surance company, two safe-deposit companies, twenty-three 
railroads, eight telegraphs, two telephones, one cable line, 
and one steamship company, as George Gould is said to be, 
in each nominally subject to the rights of his colleagues,^ 
what has become of the conception of private property as 
a possession subject to the will of its owner? ^ 

The Union Railway Company of Rhode Island oper- 
ates the street railways. Its stock was purchased by 
the United Traction and Electric Company of New 
Jersey. This company leased it to the Rhode Island 
Company, whose stock is owned by the Rhode Island 
Securities Company of New Jersey, whose stock be- 
longs to the United Gas and Improvement Company 
of Pennsylvania.^ Some men in the center of the maze 
control the profits of these financial operations in the 
stock market but what has become of private property, as 
it is theoretically understood? The function of ownership 
of trade becomes less the connection of production and 
consumption than the trade in profit on that function, which 
is carried on by subordinates. The increasingly fraudu- 
lent, temporary and speculative character of stock owner- 
ship under these conditions is destructive of the stability 
and reality of private property. Officers speculate in the 
shares of their own companies. A hierarchy of holding 
companies enables manipulators to cheat investors. The 
capitalization of assets is often limited only by the ability 

^ Pub. of Am. Ec. Assoc, 3d Series, v, 2, May, 1904. 
2 Ripley, Trusts, Pools and Corporations, p. xix. 



156 DISTRIBUTION OF OWNERSHIP [^qo 

of the promoters to make sales of fraudulent stock, or in- 
flation of "good will." Thus it is said that the United 
States Steel Corporation paid for the $320,000,000 stock 
and bonds of the Carnegie Company $163,400,000 of pre- 
ferred stock, $155,200,000 of common stock and $304,- 
000,000 of bonds/ From whom did the property gain of 
nearly one hundred per cent come to the Carnegie Com- 
pany? Credit is appropriated by the control of corporations 
over banking institutions and is sometimes applied to the 
payment of dividends out of profits that do not exist. 

The disposition of capitalists to consider not less than 
fifteen or twenty per cent fair profits is in conflict with the 
popular disposition to regard the surplus as plunder. 
There is not a general prejudice, save among the property- 
less, against corporate profits as such. Justice White ex- 
presses the current opinion, with some disregard of his- 
tory : - " The governmental power to reasonably control 
the use of property affords no foundation for the proposi- 
tion that there exists in government a power to limit the 
quantity and character of property which may be acquired 
and owned." Nevertheless President Roosevelt says:"'' 
" They (corporations) are permitted to exist not that they 
may make money solely, but that they may effectively serve 
those from whom they derive their power." Courts also 
have declared that the object of a corporation is the public 
accommodation and the promotion of public interests, that 
the dividends of the stockholders are incidental. A cor- 
poration is not a person and it is not limiting the possibili- 
ties of individual action to limit the powers of an as- 
sociation which is not an individual and which subverts the 

1 Montague, Trusts, p. 105. 

^Northern Securities Decision, Ripley, op. cit., p. 379. 

3 Message of December, 1904. 



5oi] LIMITATION OF CORPORATE OWNERSHIP i^^ 

theory of individualism by subjecting independent individ- 
uals to the competition of powders greater than are possible 
to individuals. It has become customary for courts to 
look through the mask of artificial personality. " Wher- 
ever any contract conflicts with the morals of the times 
and contravenes any established interest of society, it is 
void as being against public policy." " The care of the 
public welfare or internal public policy, has for its object 
the improvement of social and economic conditions affect- 
ing the community at large and collectively with a view to 
bringing about the greatest good of the greatest number." 

The police power, that is, the restraint of license in the 
interest of liberty, is exercised in the exaction of public 
partial rights against corporations, much the same as in the 
case of property in land. And since corporations are sub- 
ject to the duties of citizenship and sometimes transcend the 
rights of citizens, the police power must exact even more 
than from individuals. The power of corporations is per- 
haps strong enough in many cases to secure immunity; 
nevertheless their voluntary relinquishment of private char- 
acter by participation in politics and administration for 
private gain is a potential limitation of corporate privacy. 

The New York constitution incorporates a decision : 
" The laws of this state have made such interests (railroad 
franchises) taxable, inheritable, alienable, subject to levy 
and sale under execution, to condemnation under the ex- 
ercise of the right of eminent domain, and invested them 
with the rights of property generally." ^ Escheat as well 
as eminent domain applies to every variety of corporate 
property. Harmful property may be subjected to restric- 
tion without compensation for loss. In extremity the right 
of property may be totally negatived. Thus property 

1 III N. Y.. 41. 



158 DISTRIBUTION OF OWNERSHIP [^02 

rights are infringed in a small way in the taking of samples 
of provisions for inspection, in placing boundary monu- 
ments, in destruction of property that has become a nuis- 
ance; in forfeiture of property unlawfully acquired or 
used ; in destruction for the public safety ; in relief of debtors 
by bankruptcy laws ; allowing the discharge of debts in de- 
preciated currency, and in the retroactive impairment of 
contracts by legislation. These precedents illustrate the 
power of government over commercial propert3^ 

Special exercise of the power of taxation has been made 
upon corporations. Governor Roosevelt laid down the 
principle that as a corporation derives its powers from the 
state it should pay to the state in return for the privileges 
it enjoys a just per cent of its earnings.^ This was in the 
recommendation of a franchise tax, which was laid in New 
York in 1899. Other states have similar taxes. The char- 
acter of railroad corporations requires a tax differing from 
the general property tax, such as taxation based on cash 
valuation by state officers or on capitalization or on gross 
receipts. Fifty years ago when corporate property was 
not fully recognized as property, taxes were seldom put 
upon incorporation; now such taxes exist in two-thirds of the 
states." In 1903 the body of recommendations and legis- 
lation on the taxing of corporations for public service is 
larger than that on any other subject, and the character of it 
is pretty well defined as that of placing increasing burdens 
on corporations.^ It must not be forgotten that at almost 
110 time in the assumed period of liberty was ownership 
free from the limitation of paternalism, in the tariff system 
which, whatever part tariffs may have had in the general in- 

1 Message to New York Legislature, March, 1899. 
~ Industrial Com. Report, ix, p. 1017. 
^ A''. Y. Lib. Bid. Leg., 22, h24, Fetter. 



^03] LIMITATION OF CORPORATE OWNERSHIP jc^g 

crease of property, discriminated against part of the people 
for the benefit of others ; and thus contradicted the theory 
of individualism and contributed to the necessity of further 
public intervention in industry. It is perhaps significant 
that the period of passing individualism is also the period 
of excessive tariffs. 

Besides the partial rights in corporate property as prop- 
erty, the state as the creator of corporations exercises un- 
limited powers over the conditions of their operations. Be- 
fore the prevalence of general incorporation laws, it was 
held that a corporation as a person could do anything that 
it was not forbidden to do. Now, however, ultra-vires acts 
are void. While this originally secured corporate liberty 
it now, so far as it is observed, limits the exercise of 
liberty. 

The theory of the right of patent monopolies has been 
modified by the public right to profit by industrial prog- 
ress. The Supreme Court has decided that the production 
of improvements reasonably certain to have been adopted 
in the development of industry does not entitle the owner 
to a patent. 

The mischievous effect of some charters, such as those 
binding a state to exemption from taxes, or the abuse of 
charter powers, led to judicial reversal of the Dartmouth 
College decision which had made a charter a contract, and 
hence inviolable. The grounds of this reversal are: (a) that 
the state cannot barter away any of its political power, as 
the right to tax ; ^ (b) nor can it barter away its police 
power to preserve the general welfare, as in the abolish- 
ment of a lottery," or the revocation of a grant to a fer- 
tilizing factory around which grew up a city.^ The 

1 Tiedemann, Unwritten Constitution, p. 56. 

- Stone vs. Miss., loi U. S.. 820-1. 

3 Northwestern Fertilizing Co. vs. Hyde Park, 97 U. S., 659. 



l6o DISTRIBUTION OF OWNERSHIP [^04 

United States Supreme Court intimates that it is implied 
in every charter that the corporation shall be subject to 
reasonable regulation.' (c) The contract character of 
charters is evaded on the ground that all grants must be 
construed favorably to the state, and courts " are alert and 
astute to find exceptions to the doctrine of the Dartmouth 
College Decision." Thus a second bridge company was 
sustained against a first on the ground that a franchise 
is not an exclusive privilege unless expressly declared so." 
Other charters have been evaded on the theory that there 
was an implied reservation of powers in the legislature.'' 
A water company contracted with Mobile to supply the city 
with water for a term of years, receiving the sole privilege 
of supplying it from a certain creek. This contract was 
held not to be impaired by a contract with another com- 
pany to supply water from another source.* " There is 
no public contract however explicit, though made for a fair 
compensation, which has been fully paid, from which the 
public cannot recede, should this be found necessary for 
the public good." "' Detriment to the state is also avoided 
by the custom of granting franchises subject to repeal and 
amendment, a reservation which now appears in general in- 
corporation laws and state constitutions. Several state 
constitutions provide that the police power of the state 
shall never be abridged so as to permit corporations to 
conduct their business so as to infringe the rights of in- 
dividuals or the general well-being of the state. 

Advantage in industry or trade which tends to become 

1 L. & N. Ry. Co. vs. Ky., 161 U. S., 677. 

- Charles River Bridge Co. vs. West River Bridge Co., 11 Peters, 536. 

3 Brannon, op. cit., p. 361. 

* Ibid., p. 361. 

^ Beer Co. vs. Mass., 97 U. S.. 28, 2Z- 



505] LIMITATION OF CORPORATE OWNERSHIP 161 

monopoly in the strict sense of sole control, increases 
the exercise of the police power. This opposition is ex- 
pressed in decisions under the common law against mono- 
poly ; in constitutions and in statutes. 

General or unreasonable contracts in restraint of trade 
are void at common law. (a) Contracts with restrictive 
associations binding- not to buy or not to sell are void. Thus 
in the case of Raymond vs. Leavitt the plaintiff was told 
that he must use other than legal means to recover money 
loaned to a combination for the purpose of controlling the 
Detroit wheat market.^ (b) Agreements between com- 
petitors to avoid competition by limiting business or fixing 
prices are void. New York (1847-8) held such agreements 
among canals illegal." Such agreements to control coal 
supplies were held illegal in Pennsylvania and Ohio.^ 
Combinations of corporations to place their shares in trust 
with a managing board, were held illegal because ultra-vires, 
corporations having no right to form partnerships. Ac- 
cordingly the Sugar trust and the Standard Oil trust were 
declared illegal."' The stockholding corporation which fol- 
lowed the trust is also illegal.'^ " There is no magic in a 
corporate organization which can purge the trust scheme of 
its illegality." 

Many state constitutions declare against monopolies. 
Thus the Maryland constitutions from 1776 to the present 
declare that monopolies are " odious and contrary to the 
genius of a free government." Massachusetts said in 
1780: " No man or corporation or association of men have 
any other title to obtain advantage or particular and ex- 
clusive privileges distinct from those of the community 

1 Freund, op. cit., p. S37- ' Ibid., p. 342. 

3 Ibid., p. 343. * Ibid., p. 345. 

" Distilling and Cattle Feeding Co. vs. People, 156 111., 448. 



l62 DISTRIBUTION OF OWNERSHIP [306 

than what rises from the consideration of services ren- 
dered to the pubhc." ^ Democracy instinctively opposed 
these subversions of popular privilege. These declarations 
were followed by the prohibition of hereditary emoluments, 
honors and privileges. In that time men wanted freedom 
from control, not freedom to control as they did later when 
they forgot English tyranny. 

Since 1870 the new state constitutions forbid combina- 
tion of competing railroad and telegraph lines. Before 1870 
only one constitution, that of Michigan, contained an anti- 
trust clause such as is now common. After the Inter State 
Commerce Act prohibiting pooling by railroads, about 
seventy laws were passed from 1889 to 1899 "'' twenty- 
seven states for the suppression and punishment of mono- 
poly." These statutes were directed against the creation 
or carrying out of monopolies in trade, the reduction of 
production or of price, the prevention of competition, the fix- 
ing of standard prices, the making of contracts not to sell 
below a certain price. Twenty-one states made it criminal 
for two or more to enter into any agreement — regardless of 
whether it were reasonable or unreasonable — whereby free 
competition in production and sale was prevented. Seven- 
teen states made it criminal conspiracy for two or more 
persons to agree to regulate the quantity or price of any 
article to be manufactured, mined, produced or sold, regard- 
less of whether prices were raised or lowered.^ The courts 
generally uphold such legislation.* Most of these acts 
were nullified, in spite of a few enforcements, by the rule 

1 Horack, Industrial Corporations, p. 18. 

2 Freund, op. cit., p. 331. 

3 Montague, Trusts, pp. 131-2. 

* Jenks, in Industrial Commission Report, ii, p. 87. 



207] LIMITATION OF CORPORATE OWNERSHIP 163 

of comity whereby the corporations of the liberal states 
could do business in spite of the law. The federal anti- 
trust law of 1890 sought to check this, making attempts to 
monopolize interstate trade punishable by fines and im- 
prisonment, with three-fold damages to the aggrieved 
party. The federal attorney can institute proceedings 
against the corporation and restrain it by injunction. Most 
of the suits under this law have failed. The Supreme 
Court in the first case refused to restrain the Sugar Trust 
as being engaged in production and not in interstate trade. ^ 
But the law was applied to an association of railroads to 
" maintain reasonable and just rates," " to prevent unjust 
discrimination " and to establish joint traffic agencies, " to 
secure to each road an equitable proportion of the com- 
petitive trafiic." " Six companies engaged in the manu- 
facture of cast iron pipe, made an agreement that there 
should be no competition between them in any of the states 
and territories mentioned in the agreement, thirty-six in 
all. This was enjoined as a contract in restraint of trade. ^ 
An attempt to combine the Great Northern and Northern 
Pacific railroads under a New Jersey " holding corpor- 
ation " dating from 1901, in order to avoid competition was 
finally frustrated by the Supreme Court (March 14, 1903), 
although similar railroad combinations have been left un- 
changed. 

Standard Oil has had much legal attention. Thus suit 
was brought in Kansas (1905) to appoint a receiver to oust 
the corporation from the state. The legislature passed 
bills aimed at the trust : one to build a branch penitentiary 

lU. S. vs. E. C. Knight Co., 156 U. S., i (1894). 
- U. S. vs. Trans-Missouri Freight Association. 166 U. S., 290 (1897), 
and U. iS. vs. Joint Traffic Association, 171 U. S., 505 (1899). 
3 Addyston Pipe and Steel Co. vs. U. S., 175 U. S., 211 (1899). 



164 DISTRIBUTION OF OWNERSHIP [508 

for the refining- of oil (declared unconstitutional) ; another 
declaring pipe lines common carriers and a third prohibit- 
ing discrimination in rates by railway and pipe lines. Illi- 
nois investigated the pipe lines. The attorney general of 
Missouri obtained a temporary injunction restraining the 
company from doing business in Missouri. 

A bill in equity accused the " beef trust " of an alleged il- 
legal combination, perpetrating fraud on the people by exer- 
cising their power to raise unduly the price of dressed beef; 
declaring that they were oppressing and grievously injuring 
the farmer by forcing him to sell his livestock at prices un- 
profitable to him and by issuing instructions to their agents 
not to compete in bidding after prices have been unduly bid 
up at various points and the owners of livestock have been 
induced to make large shipments to those points, and declar- 
ing that independent packers were being forced to the wall 
by the lowering of prices where competition was keen, the 
losses there being recouped by raising prices where the 
field had been conquered. This accusation was sustained 
and the trust was enjoined. Upon disobedience an investi- 
gation was ordered and indictments were brought against 
twenty-six officials. The Bureau of Corporations having 
made an investigation collecting information from the 
packers, they escaped on the ground of " immunity," 
through the compulsion to testify against themselves. In 
a recent ruling (March 12, 1906) the Supreme Court has 
decided that no corporation as such is entitled to any of the 
immunity of natural persons from furnishing evidence 
against itself by producing or giving access to its books, ac- 
counts, etc. Congress also restricted the benefits of im- 
munity to those who are compelled to testify under oath or 
produce evidence, and the information derived from them 
may be used in securing the indictment or prosecution 
of others who have violated the law or of corpora- 



509] LIMITATION OF CORPORATE OWNERSHIP 16^ 

tions with which they are connected or whose affairs they 
have revealed. 

" Liberty of contract does not imply liberty in a corpor- 
ation or individuals to defy the national will, when legally 
expressed." In the sentiment and legislation on this sub- 
ject two prevalent ideas seem to be, that the possibility of 
inordinate accumulation must be preserved, while by some 
magic no one shall be oppressed by it ; the other is a pretty 
settled conviction that most combinations may be expected 
to take unfair advantage of weaker competitors, without 
personal dishonor to the men composing the corporation. 
This covetousness and this cynicism are the fruits of un- 
restrained individualism. 

Besides the opposition to monopoly as such the police 
power is much engaged in regulation of the business of 
corporations. " No legislature can bargain away the pub- 
lic health or public morals. The people themselves cannot 
do it, much less their servants. The police power of the 
state which rests largely on legislative discretion cannot be 
parted with." ^ A state may compel a railroad to operate 
its franchise." The state may dissolve it for the misuse or 
the nonuse of its powers."' Contracts disabHng a corpor- 
ation from performing its duty to the public are void.* 
" When one devotes his property to a use in which the pub- 
lic has an interest he in effect grants to the public an in- 
terest in that use and must submit to be controlled by the 
public for the common good to the extent of the interest he 
has thus created." ° This was in sustaining the control of 

1 Stone vs. Miss., loi U. S., 819. 

2 Cook, W. W., Corporations, p. 790. 

3 Ihid., p. 703. 

^ Clark, W. L., Corporations, p. 288. 

^ Munn vs. 111., 94 U. S., 113. Freund, op. cit., p. 380. 



l66 DISTRIBUTION OF OWNERSHIP [^lO 

Illinois over elevator sales. The " Granger " cases of the 
same time sustained similar control over railroads. Other 
businesses have been classed as public at common law, as 
inn keepers, ferrymen, wharfing-ers, millers. Others have 
been classed as public by statutes, as telephones, telegraphs, 
turnpikes, gas, light, heat, grain storage, stockyards and 
powder through pipes and wires, banking and insurance, and 
recently the gathering and distribution of news and market 
quotations. 

Banks and insurance were both the first forms of corpor- 
ations to be encouraged and the first to be thoroughly regu- 
lated. The chief early banks indeed were semi-govern- 
mental institutions. The abuse of the freedom conceded 
to banking led to systematic legislation, beginning with the 
New York law of 1838, by which, among other things, 
periodical reports and public statements and minimum capi- 
tal were prescribed. Governmental intervention in bank- 
ing extended even to the destruction of the state bank 
note circulation by taxation. At present there is a marked 
tendency to uniformity in the regulation of financial in- 
stitutions. Thus the laws of Wisconsin, South Dakota, 
and North Carolina (1903) require definite reserves and 
prohibit the holding of real estate other than that required 
for transacting business. They restrict the amount of 
money that may be loaned to one individual, and all place 
these institutions under the supervision of state depart- 
ments. Similar laws are general. New York imposes 
additional restrictions on trust companies and savings 
banks. Franchise abuse and the ruinous practices result- 
ing, the natural outcome of private property in insurance 
functions led to the first general legislation in New York 
in 1849 ^^"^ the first insurance departments, those of Massa- 
chusetts (1855) and New York (1859). The same causes 
have led to the present elaborate regulation, the increased 



51 1] LIMITATION OF CORPORATE OWNERSHIP ^dj 

supervision and publicity and the agitation for federal su- 
pervision. Insurance corporations were included under 
those subject to investigation by the Bureau of Corpora- 
tions (1903). 

The purpose of such laws is the preservation, if possi- 
ble, of property rights of the depositors and the insured. 
All restrictive laws indeed aim at this, railroad laws as 
well as banking laws. " It cannot be disputed that a rail- 
road is a public corporation." ^ Private property in rail- 
roads is a public trust. The preambles of the old charters 
set forth the public services to be performed by the rail- 
roads. ^ Accordingly, from the beginning of railroad his- 
tory, nothwithstanding the predominant power of the 
roads, the state has sought to participate in their manage- 
ment. Railroad commissioners (Rhode Island, 1836), pro- 
visions for publicity of rates, inspection of books by stock- 
holders, power reserved by the state to purchase after a 
given number of years, limitations of the terms of the char- 
ter, state participation in the construction of roads by sub- 
scription (as in Maryland, 1827) or by the loan of public 
credit or by tax exemption (until about 1875), all appear 
in the earlier railroad history. The early charters likewise 
regularly contained provisions regarding rates. A num- 
ber of states give power to railroad commissions to limit or 
regulate rates. ^ Thus an Iowa statute of 1862 required all 
operating railroads to fix rates per mile for passengers or 
freight. This was held a police regulation. ^ In one year 
there were one hundred and thirty-five separate acts in 

1 Trans-Missouri Freight Assoc, vs. U. S., 166 U. S., 290. 

2 Industrial Com. Rep., ix, p. 903. 

3 Stimson, Am. Stat. Law, ii, pp. 435-41. 

4 R. R. Co. vs. Fuller, 17 Wallace, 560. 



1 68 DISTRIBUTION OF OWNERSHIP [512 

thirty-one states regulative of steam railways/ Texas re- 
quires the cause of the delay of trains to be announced. 
Stopping of trains at intersecting lines is governed. Union 
depots may be required by the Corporation Commission of 
North Carolina (1903) when necessary. Indiana requires 
drinking water tanks in motor cars running continuously 
over eighteen miles. Iowa (1904) required railway com- 
panies to issue to the shipper of one or more carloads of 
animals a free ticket from the point of shipment to the 
point of destination.- In Washington it is a misdemeanor 
to employ inexperienced men on street railways. Some 
states forbid the employment of drinking or color-blind en- 
gineers. A common carrier cannot admit one bus-driver 
to a depot and exclude others.^ South Carolina requires 
companies to publish rates on watermelons and canteloupes 
during January and February of each year, which rates 
shall not be increased during the year. " The railroads 
are more controlled than any other institution in the coun- 
try. They come in contact with the public in more differ- 
ent ways and are more subject to injurious restrictions than 
any other private interests. Every village board of trus- 
tees, every town and city council, every state and every 
political subdivision of the state in some way regulates the 
railway business and imposes restraints or taxes or both." * 
Allowing for the counting-house sense of rights and in- 
juries, these restrictions still indicate the conception of the 
subordination of railroads to government, whatever may be 
the facts. 

Discrimination, the favoring of valuable patrons, is a pre- 

1 Meyer, B. H., N. Y. Lib. Bid. Leg., 22. 22m. 

- N. Y. Lib. Bid. Leg., 251112. 

3 Beach, C. F., Company Law, p. 496. 

•* Hines. W. D., Am. Ec. Ass., 3d Series, iv. p. 84. 



513] LIMITATION OF CORPORATE OWNERSHIP j^g 

valent practice of carrying corporations, incidental to and 
essential to private ownership. " Ever since competitive 
railroads have existed, the actual competitive rates, as is 
well known, have been made by the rebate system." ^ The 
Senate Committee of 1887 said: "The practice prevails so 
generally that it has come to be understood among business 
men that the published tariffs are made for the smaller ship- 
pers and those unsophisticated enough to pay the established 
rates, that those who can control the largest amount of 
business will be allowed the lowest rates." ' But by the 
common law the obligation to render equal service to all 
alike at the customary rates is imposed upon common car- 
riers." The Interstate Commerce Act makes it unlawful 
to discriminate between persons or places or to charge or 
receive more for a shorter than for a longer haul under the 
same conditions. Congress by the Elkins Law (1903) 
facilitated prosecutions under the Interstate Commerce Act, 
by providing for the punishment of the railroads as well 
as their agents and also for the punishment of the shippers. 
The Interstate Commerce Commission reports the continued 
evasion of the law. In 1905 there were 568 complaints 
before the commission, 65 formal cases and investigations 
and 45 formal decisions.* These involved 321 carriers. 
Numerous prosecutions and indictments have been secured 
recently against rebating. Thus officials of the Chicago 
and Alton Railroad were convicted for giving rebates to a 
packing house and officials of the Chicago, Burlington and 
Quincy Railroad were fined and imprisoned, and four of the 
packing houses favored were fined $5,000 each and two offi- 
cials were fined and imprisoned. The Interstate Commerce 

1 Stickney, Political Science Quarterly, March, 1906. 

~ Ibid. ^ Freund, op. cit., p. 398. 

^Annual Report of the Interstate Commerce Commission, 1905^ P- I4- 



170 DISTRIBUTION OF OWNERSHIP [514 

Commission having been judicially reduced to an investi- 
gating and advising board, which could enforce its orders 
only by suit, a nev^ rate law has been passed (1906), which 
empowers the commission to prescribe rates. This bill re- 
quires interstate carriers, including oil pipe lines, express 
companies and sleeping car companies to make through 
rates and reasonable joint rates and publish all rate fares 
or charges, changing these only on thirty days' notice. The 
Commission may hear complaints and fix rates. 

The forms of incorporation are subject to regulation. 
The amount of capital to be paid in before beginning busi- 
ness may be prescribed by the state. To prevent " stock 
watering " by false valuation of property or labor received 
in exchange for stock, it is frequently provided that " No 
corporation shall issue stocks or bonds except for money, 
labor done or property actually received and all fictitious 
increase of stock or indebtedness shall be void." ^ In or- 
der to place responsibility the number of directors is speci- 
fied in most states. A state may define " foreign corpor- 
ations," limit their activity and prescribe conditions on 
which they may do business within its boundaries.^ In- 
creased publicity is recently sought. Thus Iowa secures 
to the public the right to see all information that is required 
from corporations. Reports are commonly required to 
state officials. Statutes secure to tax commissioners, audi- 
tors, governors, attorney generals and legislative assem- 
blies power to examine the conditions of corporations and 
require reports. Combinations have been subjected to nu- 
merous legislative investigations, such as the Pennsylvania 
investigation of the coal combine in 1871 ; the Industrial 
Commission of 1898- 1902 to investigate the conditions of 

1 Horack. op. cif.. p. 68. 

- Hooper z's. California, 155 U. S.. 648. 



515] LIMITATION OF CORPORATE OWNERSHIP lyi 

industry in general and recommend legislation to Congress. 
It has become so settled a fact that corporations will be dis- 
honest that the Bureau of Corporations is largely engaged 
in the investigation of suspects. Recently the packing in- 
dustry has been subjected to special sanitary inspection. 

The public promotion of commercial interests of private 
corporations are extensions of the general interest in pri- 
vate enterprise. Thus the Department of State negotiates 
commercial treaties. Its consular agencies are almost ex- 
clusively devoted to commercial interests. The Depart- 
ment of Agriculture has spent approximately $40,000,000 
in ten years in the promotion of agriculture. 

Indeed, laws regulating and limiting the possibilities of 
dealing with one's own property in commerce are increas- 
ingly bewildering in their extent and complexity. Thus in 
1903 fifteen states regulated weights and measures. Fifty- 
four laws were passed regulating and licensing trades and 
occupations. Massachusetts and Minnesota curtailed the use 
of trading stamps.^ Twenty states passed laws relating to 
contagious diseases of animals ; thirteen laws were passed 
relating to warehouses and stockyards. A new national 
meat inspection bill has been passed (1906) providing in- 
spection of live cattle and carcasses and meat products and 
the destruction of condemned meats in the presence of the 
inspector. Thirty-one states legislated concerning adul- 
terations and imitations. 

Notwithstanding the multitude of restrictions that have 
been suggested, it is still perhaps true that " our civilization 
makes property more sacred than personality." " Only 
those laborers who own land are protected in their right 
to live. Limitation of the power to compel service would 

1 A^. Y. Lib. Bui Leg., 22. 

- Small, Am. Journal of Sociology, i, p. 278. 



172 DISTRIBUTION OF OWNERSHIP [516 

be the most serious loss to ownership of commerce and 
industry. The Thirteenth amendment secures labor against 
involuntary service. Complete ownership being impossible, 
partial ownership through wages and contract is subject to 
increasing limitation. Wyoming and Utah laws say : 
" The rights of labor shall have joint protection through 
laws calculated to secure to the laborer proper rewards for 
his services and to promote the industrial welfare of the 
state." ^ " The wage workers are peculiarly entitled to the 
encouragement and protection of the law." ' Notwith- 
standing many decisions affected with the idealism of a past 
generation the tendency of the laws seems to be to dispose 
effectually of the fiction of freedom of contract. There 
can be no such thing where contract is based as in our in- 
dustry, not on equality of status, but on inequality of own- 
ership. Society protects the laborer to some degree from 
freedom of contract. Contracts for unreasonable length 
of time will not be sustained by the courts. The codes of 
Colorado, Montana, North Dakota and South Dakota pro- 
vide that contracts for personal service are not enforceable 
against the employe for a longer time than two years.''' It 
is not easy to enforce a reasonable contract. " The rule, 
we think is without exception, that equity will not confirm 
the actual affirmative performance by an employe of merely 
personal service any more than it will compel the employer 
to retain in his personal service one wdio, no matter for 
what cause, is not acceptable to him for service of that char- 
acter. Relief of that character has always been regarded 
as impracticable.^ Practically every state exempts the la- 
borer's wages from attachment or execution for debt and 

^ Cited Report of Industrial Commission, v. p. 19. 

- President Roosevelt, Message, Dec. 1904. 

^ Freund. op. cit.. p. 480. * Ihid. 



517] LIMITATION OF CORPORATE OWNERSHIP 173 

makes him on the other hand a preferred creditor.^ Cer- 
tain states exempt labor from the operation of the anti- 
trust law. 

Compare the following contracts : 

" Know all men by these presents that I, John Koontz 
of the count)^ of Shenandoah and State of Virginia for and 
in consideration of the sum of three hundred and seventy- 
five dollars to me in hand paid before the sealing hereof, 
having granted, bargained, sold and delivered, and by these 
presents do grant bargain, sell and deliver unto John New- 
man of the county and state aforesaid one negro boy named 
James to have and to hold unto the said John Newman, 
his heirs, executors and admrs. and assigns the said 
negro boy James forever, and the said John Koontz for 
himself, his heirs, executors and admrs. hereby war- 
rants and defends the said negro boy James to the said 
John Newman, his heirs, etc., sound in body and mind and 
free from all defects whatsoever, aged sixteen years in 
September next. Witness my hand and seal this nth day 
May, 1830. 

Test. John Newman. John Koontz. (Seal.)^ 

Here is an indenture of 1628: 

A husbandman of Surrey county, England, contracts and 
binds himself to a citizen and iron monger of London to 
continue " the obedient servant of him, the said Edward 
hurd, his heirs and assignes, and so by him or them sente 
transported unto the country and land of Virginia in the 
parts beyond the seas to be by him or them emplo3^de upon 
his plantation there or and during the space of four yeares, 
and will be tractable and obedient and a good and faithful 

1 Adams and Sumner, Labor Problem, p. 476. 

2 In the possession of the writer. 



174 DISTRIBUTION OF OWNERSHIP [518 

servant onyst to be in all such things as shall be com- 
manded him. In consideration whereof the said Edward 
hurd doth covenant that he will transporte and furnishe to 
the said Logwood to and for Virginia aforesaid and allow 
unto him sustenance, meat and drink, apparel and other 
necessarys for his livelihood and sustenance during the said 
service." This was sealed and delivered in the presence of 
two witnesses. 

A southern negro, who does not at all know what he is 
doing contracts as follows : 

" I agree at all times to be subject to the orders and 

commands of said or his agents, perform all 

work required of me or his agents shall 

have the right to use such force as he or his agents may 
deem necessary to compel me to remain on his farm and to 
perform good and satisfactory services. He shall have the 
right to lock me up for safe keeping, work me under the 
rules and regulations of his farm and if I should leave his 
farm or run away he shall have the right to offer and pay 
a reward of not exceeding $25 for my capture and return, 
together with the expenses of the same, which amount so 
advanced, together with any other indebtedness I may owe 

at the expiration of the above time, I agree 

to work out under all rules and regulations of this contract 

at same wages as above, commencing and ending 

The said shall have the right 

to transfer his interest in this contract to any other party 
and I agree to continue work for said assignee same as the 
original party of the first part." ^ 

Passing by agricultural laborers and household -servants 
who are usually engaged on conditions prescribed by cus- 

1 Cited in Ely, Evolution of Industrial Society, p. 407. 



519] LIMITATION OF CORPORATE OWNERSHIP 17- 

torn and with liberty usually only at the grace of the em- 
ployer, a contract of a skilled mechanic may be given : 

" I hereby agree in consideration of the Wm. Knabe & 
Company employing me as polisher at the present scale of 
wages, that I will discharge my duties in a workmanlike and 
skillful manner according to the directions of the said 
company, and that in leaving the employment of the said 
ocmpan)^, I will give thirty days' notice in writing and if re- 
quested sixty days' notice of my intention to leave. I 
further agree that said company shall have the right to de- 
duct fifteen per cent of each week's wages until the sum 
shall amount to $100, which said sum of $100 shall be re- 
tained by the company till the termination of my employ- 
ment, when it shall be paid to me, provided I shall faith- 
fully keep the terms of this agreement, otherwise all money 
so deducted shall be considered liquidated damages for the 
violation of this agreement, and shall belong to the said 
company. And it is understood that as soon as the deduc- 
tion from wages as aforesaid shall amount to $100 the sum 
shall begin to bear interest at the rate of five per cent, 
which said interest shall be paid annually, and that said 
company shall give me thirty days' written notice before 
making" any change in the scale of wages existing at the 
time of this contract." ^ 

Whether one sees any analogy between this last contract 
and the other three depends entirely upon his economic ex- 
perience. Hence it is idle to draw any. Yet the status of 
the two parties to the contract is entirely different after the 
making of the agreement. The employee has sold himself 
temporarily. The employer gives something much less than 
personal service in return. When freedom of contract pre- 

1 International Woodworker, April, 1902. 



1-^6 DISTRIBUTION OF OIVNERSHIP [^20 

vailed in American industry to a greater extent than now, 
the operatives of New England were working thirteen 
hours a da}^ In Connecticut the employees of one factory 
worked fifteen hours and ten minutes. In Paterson, New 
Jersey, women and children went to work at half-past four 
in the morning and if they w^earied the master used a lash/ 
It is absurd to speak of the freedom of necessity. 

But the employer invokes the courts in behalf of free- 
dom of contract when legislation interferes in his relations 
with his men. " No state therefore can limit a man's right 
to sell his labor or to hire labor on his own terms except 
so far as the good police of society may require." " But 
such police requires much interference in the relations of 
industry. Daniel Webster said : " The freest government 
if it could exist, would not be long acceptable if the tend- 
ency of the laws were to create a rapid accumulation of 
property in few hands, and render the great mass of the 
population dependent and penniless." " Stimson notes and 
classifies approximately 1639 laws passed between 1887 and 
1897 affecting labor interests in 43 lines.* 

Laws in benefit of labor may be divided into those pro- 
tecting men from oppression in employment, and those 
tending to secure men in the employment itself. Neither 
of these objects can be achieved without infringement of 
the liberty of private property in industry. Hence they 
become a form of economic property to the laborer. 

The health and safety of laborers is sought in a multi- 
tude of sanitary and precautionary regulations of factories, 

1 Ely. Evolution of hid. Society, p. 59. 

- State vs. Julow. 129 Missouri, 171. 

3 Quoted in Loria, Economic Foundations of Society, p. 337. 

■* "Democracy and the Laboring Man," Atlantic Monthly, Nov., 1897.. 



52 1 ] LIMITATION OF CORPORATE OWNERSHIP ' ^yy 

mines and railroads. The government interferes with the 
laborer's contracting to his own hurt. "A man may con- 
tract to use such machinery or to perform dangerous ser- 
vices and have no remedy for injury, but we are not aware 
that the police power is limited by such contract." ^ " The 
fact that both parties are of full age and competent to con- 
tract does not necessarily deprive the state of the power to 
interfere where the parties do not stand on an equality or 
where the public health demands that one party to the con- 
tract be protected against himself. The state still retains 
an interest in his welfare, however reckless he may be. The 
whole is no greater than the sum of all its parts and when 
an individual's health, safety and welfare are sacrificed or 
neglected the state must suffer." " 

Massachusetts and New York are the most advanced in 
labor legislation, while more than half the states have such 
laws and the more distinctly agricultural states are adding 
to them. These laws usually provide for one or more factory 
inspectors, who shall have the right to enter and inspect 
all factories at all times. Laws prescribe fire escapes, dust 
fans, guards, doors that open outward and the like appli- 
ances. Machinery must not be cleaned while in motion, 
nor by women or minors under a certain age. The engine 
room must be connected with the machine rooms by tubes; 
a certain amount of cubic air space must be allowed ; walls 
must be limed or painted ; toilet rooms, screened stairways 
with handrails and many other conveniences and comforts 
have been prescribed by various laws. Sanitary laws are 
re-enforced by building laws. Thus in Massachusetts the 
plans for new factories must be submitted for inspection. 
Sweat-shop legislation is increasing. Special conditions 

1 People I's. Smith, 65 Mo., 382. 

2 Holden vs. Hardy, 169 U. S., 380. 



1^8 DISTRIBUTION OF OWNERSHIP [^22 

receive special protection. Thus in several states bakeries 
are particularly restricted. In Wisconsin (1903) the use 
of cellars is prohibited ; proper ventilation, drainage and 
sanitation is required ; sleeping rooms are separated from 
the store rooms for flour or meal.^ The mining states have 
elaborate laws for the construction, ventilation and inspec- 
tion of mines. Railroads require especial attention. Thus 
in 1893 th^ federal law required power brakes, automatic 
couplers, grab irons or hand holds on freight cars. Be- 
tween 1885 and 1890 various states required automatic 
couplers, proper blocking of frogs and switches, bridge 
guards, safety switches and the like. Illinois (1903) re- 
quires street railway companies to provide vestibules or 
screens on their cars to protect motormen from November 
to March. 

The labor of women and children has always been con- 
sidered a proper subject of legislation. The hours of wo- 
men's labor are limited in many states, usually to sixty 
hours a week, sometimes to forty-eight, as in Wisconsin. 
Five states prohibit night work by women." Some prohibit 
women from certain kinds of work. In 1903 legislation 
against child labor was strengthened in many states. Thus 
Illinois limited the hours of labor of children of fourteen to 
sixteen to eight hours and prohibited employment of children 
under sixteen in a long list of employments.^ " What with 
factory and mining and compulsory attendance laws, it 
may be said that all of the northern states except Delaware 
try to keep children out of employment during at least a 
considerable portion of the year till they have reached the 
age of fourteen years." The attitude of those who would 

1 N. Y. Lib. Bui. Leg., 22 q. ~ Ibid., 22q22. 

3 Whittelsey. Factory Legislation, Annals of the American Academy, 
July, 1902. 



523] LIMITATION OF CORPORATE OWNERSHIP lyg 

have absolute ownership in trade was expressed by Hamil- 
ton : ^ " Women and children are rendered more useful and 
the latter more early useful " by the protection to home 
industry. 

Some effort has been made to secure men as well from 
oppression. Workmen are secured from oppressive hours 
on public works. The hours of men engaged on public 
works were limited to ten in 1840. In 1868 they were 
limited to eight. About fifteen states have passed similar 
laws.' Such legislation is sustained. Some effort has been 
made to limit the hours of men in private employment. 
Fifteen states limit the number of hours that railway men 
may work continuously. The hours of coal miners have 
been limited to eight in Illinois, Indiana, Ohio and Penn- 
sylvania, and in Utah and Colorado. The Utah eight-hour 
law was sustained by the United States Supreme Court. ^ 
Thirteen states attempt to regulate the time of wage pay- 
ments and to prohibit extortion by company stores. Six- 
teen states outside of New England have passed anti-truck 
laws. Indiana and Ohio have attempted to prevent the 
withholding of wages or the imposition of fines by employ- 
ers for imperfect work.* 

There is a tendency toward greater liability of employers 
in case of accident. The English Employers' Liability Act 
to extend employer's liability to workmen for injuries has 
been copied in many states. This abrogates the former 
fellow servant doctrine by which an employe might have 
no compensation for injury by a fellow employe. Some 
states forbid " contracting out " of this liability. Thus 

1 Report on Manufactures. 1791. 

2 Adams and Sumner, op. cit., p. 410. 

3 Holden vs. Hardy, 169 U. S., 397. 
* Whittelsey, op. cit., p. 237. 



l8o DISTRIBUTION OF OWNERSHIP [524 

Maryland (1903) makes the employer liable in every case 
where the workman is not at fault. Ohio (1904) does 
away with the common law rule that the employer is not 
liable for negligence when the employe continues in the em- 
ployment with knowledge of the neglect on the part of the 
employer/ A national act (1906) provides: "In all ac- 
tions hereafter brought against any common carriers to re- 
cover damages for personal injuries to an employe, or 
where such injuries have resulted in his death, the fact that 
the employe may have been guilty of contributory negligence 
shall not bar a recovery where his contributory negligence 
was slight and that of the employer was gross in com- 
parison, but the damages shall be diminished by the jury 
in proportion to the amount of negligence attributable to 
such employe." 

There are indications of the establishment of some claim 
to employment. If so, this would be a partial right in 
ownership of industry corresponding to tenant rights in 
land. Massachusetts says : "A person who being engaged 
in manufacturing, requires from persons in his employ, 
under penalty of forfeiture of a part of the wages earned 
by them, a notice of intention to leave such employ shall be 
liable to a like forfeiture if without similar notice, he dis- 
charge a person in his employ." " There are similar laws 
in other states. Laws of like effect are those against alien 
contract labor. 

An effective instrunient of control over their employment 
in the hands of laborers is the strike. It is estimated that 
50.77 per cent of strikes have succeeded and 13.14 per cent 
have been partially successful.^ In 1905 there were 1157 

1 A^. Y. Lib. Bid. Leg., 22 q6. 

2 Mass. Labor Laws, ch. 106, sec. 10. 

3 Ely, Evol of Ind. Society, p. 114. 



525] LIMITATION OF CORPORATE OWNERSHIP jgi 

Strikes of which 458 were won, 79 were compromised and 
210 were lost/ In early English and American decisions 
all strikes were held to be criminal conspiracy. Now it is 
lawful for unions to do anything which an individual may 
do. Fifteen states secure the right to strike by statutes. 
Thus in California (1903) the right of workmen to combine 
in unions and to strike was guaranteed by a statute that an 
agreement between employers or employes shall not be 
deemed a conspiracy if it would be legal if performed by 
individuals.' Blacklisting by employers is forbidden in 
twenty-seven states. A few states have required that the 
cause of discharge be furnished to the employe in writing. 
The right of organization is legally sustained. It is made 
a misdemeanor to make membership in unions a bar to 
employment in several states, as in Kansas, Nevada and 
Oregon in 1903.^ Political intimidation is a misdemeanor 
in some states. Most states legally recognize the " union 
labels " placed on manufactured goods for " fair work." 
Nevada and Montana require the state printing to have 
the union label. 

Partial rights are established by means of state con- 
ciliation and arbitration. At the beginning of the year 
1905 twenty- four states had passed laws for industrial arbi- 
tration, the earliest being Maryland in 1878. National 
boards for voluntary arbitration (1888 and 1898) in dis- 
putes affecting interstate commerce have been ineffectual. 
The governors of the two leading industrial states. New 
York and Pennsylvania (1903) recommended compulsory 
arbitration. But the National Civic Federation has been 
influential in hundreds of conciliations through its commit- 

1 American Federation of Labor, 25th Annual Report. 
^N. Y. Lib. Bui. Leg., 22qi5. 
3 Ibid. 



l82 DISTRIBUTION OF OWNERSHIP [326 

tee of twelve influential men representing capital, labor and 
the public. 

Indirectly a claim is established on employment by the 
ability of unions to establish the closed shop; and also by 
the recognition and negotiation now general between in- 
dustrial corporations and unions. Burns, former President 
of the Wall Paper Association, testified that combinations 
aid the unions in enforcing demands,^ and the volume of 
testimony before the Industrial Commission indicates 
marked gains to labor through organizations. The influ- 
ence of some of the leaders suggests the Roman tribunes, 
who by continued intervention in behalf of the populace, 
gained a veto ; or shall we call the heads of the Civic 
Federation our tribimi plchisf 

Collective bargaining with the unions recognizes the 
right or at any rate the power of the voice of wage earn- 
ers in determining the conditions of their labor. Both 
sides organize. National executive officers of the unions 
take up with the employers or organizations of employers 
the matter in dispute. Thus in Illinois the coal operators 
maintain a commission which with the executive of the 
miners' organization considers disputes not otherwise arbi- 
trated. 

Employers' associations of another kind must be reck- 
oned with as an institution tending to industrial classifica- 
tion in whatever may be the coming form of estate, and 
tending to the limitation of individual industrial owner- 
ship. There are 500 such organizations in the United 
States, most of them affiliated with the Citizens' Industrial 
Association of America (1903), which seeks, inconsis- 
tently enough, through offensive and defensive organiza- 
tion of industrial management, to maintain individualism 

1 Industrial Comniission Report, xix, 623. 



527] LIMITATION OF CORPORATE OWNERSHIP ig^ 

in industrial service; in their own words, "to loose the 
damnable steel manacles cruelly locked on the hands of the 
common man and his wife and children " by labor unions 
and to " protect the common people from the oppression of 
the labor trust." ^ Associations for collective bargain- 
ing tend to industrial classification or estate by recognition ; 
the fatuous employers' associations accelerate the same 
tendencies by antagonism. 

Whether the union movement be viewed as cause or effect 
of the trend toward co-operation, its strength belongs to the 
last quarter of the century, the time of general limitation 
of ownership. The Knights of Labor, organized without 
reference to specific interests, naturally gave way in influ- 
ence to the American Federation of Labor (1881) which is 
organized by trades and has nearly two million members. 
It is proposed to incorporate labor unions. Li so far as 
this might increase economic responsibility and security it 
would enhance the partial right in ownership which is the 
virtual aim of such organizations. The benefit funds of 
the unions and their fraternal and insurance features must 
tend to economic security, or property. Thus in 1905 the 
international organizations of the American Federation 
of Labor paid $742,421 in death benefits; $582,874 in sick 
benefits and $85,050 in unemployed benefits." 

Perhaps the national classification into industrial estates 
is contributed to by the bureaus of labor statistics in most 
of the states and by the free employment bureaus of thir- 
teen states. 

The extent of the efTectiveness of all these limitations of 
corporate liberty must not be overestimated: corporate limi- 
tation is perhaps only incipient, and laws only prophetic. 

1 Advertisement, Chicago Record-Herald, July 4, 1906. 

2 25th Annual Report, Am. Fed. Labor. 



1 84 DISTRIBUTION OF OWNERSHIP [^28 

The Industrial Commission reports that very little of the 
anti-trust legislation has been effective.^ Laws at least 
indicate the height of the possible liberty of that at which 
they are directed. Thus of 318 corporations of the size 
known as trusts existing in 1904, 236 had been incorporated 
since 1898 with a capital of $6,049,618,223 as compared 
with a capital of $1,196,724,310 of those incorporated be- 
fore 1898. Thus the anti-trust legislation preceded rather 
than followed the trust movement." The Attorney General 
of the Standard Oil Company said : ''A modern federal law 
also exists which literally interpreted forbids business of any 
magnitude, but federal judges have thus far found it easier 
to dismiss proceedings under it than to guess at its real 
meaning."^ President Roosevelt says:* "The interstate 
commerce law in the matter of rebates was practically a dead 
letter." Land commissioners who aid in fraud, inspectors 
who do not inspect, commissioners and investigators whose 
chief function is to shield the guilty are familiar phenomena. 
The labor laws also in many cases are unenforced and un- 
sustained in the courts. " The percentage of reversals on 
appeal in master and servant cases when the verdict of the 
juries of the courts below had been in plaintiff's favor is 
perhaps larger than in any other branch of litigation." ^ 
However it is probable that the chief influence of reaction- 
ary decisions is to strengthen the dependence of labor upon 
its own defense. 

These direct modifications of ownership are supplemented 

^ xix, p. 641. 

- Moody, Truth about the Trusts, p. 486. 
3 Quoted in Ghent, Benevolent Feudalism, p. 35. 
* Letter to Secretary Morton, June 22, 1905. 

5 " Courts and Factory Legislation," in Am. Journal of Sociology, 
Nov., 1900. 



529] LIMITATION OF CORPORATE OWNERSHIP 185 

by various institutions and social movements in ameliora- 
tion of bad distribution. The increase of population and 
the concentration of private property are attended by a 
rapid extension of public charities, public ownership, profit- 
sharing, stock ownership, co-operative association, insur- 
ance, corporate provision for the welfare of dependents 
and private philanthropy — all charges on existing private 
property or limitations of its future possibility and content. 
These indicate drift to estate. These limitations may be 
classed according to their agencies, as public, corporate and 
private. 

Public limitations are public charity and public owner- 
ship. Pensions have increased from $15,525,153.11 in 1866 
to $141,142,861.33 in 1905.^ In 1903 alone legislation pro- 
vided for fifteen new state charitable institutions in twelve 
states including an insane hospital, institutions for the feeble- 
minded, reform schools, an institution for the adult blind, 
a school for the blind, sanitoriums for consumptives, general 
hospitals, homes for miners, homes for orphans and an in- 
stitution for the treatment of hydrophobia." In 1903 the 
total cost of maintaining public benevolent institutions was 
$16,263,958 or 29.3 per cent of the total expenditure for 
such institutions.^ Public charity is a charge upon property 
rather than upon affection. Such involuntary philanthropy 
is one of the costs of private opulence, one of the conditions 
of the quiescence of the indigent. Philanthropy in this giv- 
ing is like the love bene of the serf to his master, which ulti- 
mately became a tax, or like the benevolence of King- 
Charles, which became compulsory ; only that now the sov- 
ereignty is popular. These customary benevolences become 

^Statistical Abstract^ 1905, p. 603. 

2 A''. Y. Lib. Bui. Leg., 22x2. 

3 Census Bulletin of Charities, 1906. 



l86 DISTRIBUTION OF OWNERSHIP [^30 

obligations on private property, which diminish the " in- 
definite residuum," and might not be disallowed by any 
considerable section of society without peril. In its receiv- 
ing of the benevolences the people are like the Roman pro- 
letariat which was fed from the public treasury. This 
was a repayment of the taxes paid by the many to a few. 

Besides exacting benevolence society may exact facility 
of its public services. The state assumes the service or 
limits the franchise of the monopoly. Twenty years is a 
customar}^ franchise. Of fifty larger cities only three have 
privately owned sewers. Of publicly owned electric light 
systems there w^ere 20 in 1892 and 400 in 1898.^ In 1902 
22.5 per cent were municipal." In 1902 70.4 per cent of water 
systems in cities of over 38,000 population belonged to the 
municipality and 54.2 per cent in all cities. '"' Boston and New 
York have constructed important underground railways, 
which however are leased to private companies. Illinois 
( 1903 ) authorized its cities to own and operate street railways. 
The municipal election of Chicago, April 4, 1906 presented 
four candidates for mayor, each on a municipal ownership 
platform. Missouri (1903) allows all municipalities of 
less than 30,000 population to undertake any public utility. 
Kansas (1903) authorizes cities of less than 15,000 popu- 
lation to own waterworks, gas, oil and electric plants, se- 
cured by bonds issued on a vote of the electors.'* Cali- 
fornia (1903) gives authority to maintain waterworks, 
wharves, street railways, telephones, telegraph lines and 
lighting and heating plants.^ Chicago provides municipal 
parks and recreation centers in its crowded sections, four- 
teen of these on the south side having been opened at an 

1 Bemis, Municipal Monopolies, p. 673. 

-.V. }'. Lib. Bill. Leg., 22V19. 

•■^ Ibid.. 2Jvi8. •* Ibid.. 22v2i. 



53 1 ] LIMITATION OF CORPORATE OWNERSHIP 187 

initial expense of $75,000 each and maintained at an 
average annual expense of $30,000, providing entirely free 
playgrounds, swimming pools, baths, indoors and outdoors, 
with clothes and towels, gymnasiums and club rooms and 
a refectory with small charges. Municipal improvements 
especially illustrate the social power over private property. 
Thus Virginia allows improvements to be paid for by 
special assessments, in some cases to be ordered by two- 
thirds of all the members of a council after notice and a 
hearing to the land owners.^ 

Voluntary corporate limitations are profit sharing and 
stock ownership by dependents and small investors ; pro- 
vision for the welfare of dependents and various forms 
of co-operative associations. Thus the United States Steel 
Corporation distributed over $500,000 to officials who at- 
tracted attention during 1904. The same corporation pro- 
posed to distribute among its men one per cent of net 
earnings, if during the year there were between $80,000,000 
and $90,000,000 of profits, and to increase the sum one- 
fifth per cent for every $10,000,000 added to the earnings." 
Seven hundred and eleven laborers owned stock of $245,200 
in the Illinois Central Railroad in 1902." The Proctor and 
Gamble Company pays a profit sharing dividend at the 
same time as the dividend on common stock and this 
dividend is equal to a dividend on an amount of stock cor- 
responding to the salary.* The N. O. Nelson Company 
of St. Louis, distributes profits in equal percentage to 
capital, skill and labor. The varied systems of profit shar- 
ing have developed in the later period of general limitation 

'^N. Y. Lib. Bill Leg., 22V15. 

- New York Herald, Feb. i, 1905. 

2 Bolen, Getting a Living, p. 116. 

* Adams and Sumner, The Labor Problem, p. 341. 



DISTRIBUTION OF OWNERSHIP 



[53- 



of ownership. There are now about fourteen such plans 
in operation/ These seem to be a sharing in industrial 
control ; but labor leaders deny this. 

Although ownership is not fairly distributed among the 
stockholders of corporations, there are said to be 950,000 
stockholders and 300,000 bondholders of the railroads alone. 
The Steel Corporation has 90,000 stockholders." There are 
9,123 shareholders in the Illinois Central Railroad, of whom 
7,174 have less than one hundred shares each. The Penn- 
sylvania Railroad is said to have 44,500 owners.^ The 
American Express Company, founded by two or three men, 
had in 1892, 6,882 stockholders.* The Western Union 
Telegraph Company had 1701 stockholders in 1881 and 
12,242 in 1904; the Standard Oil Company had 45 stock- 
holders at first and 4000 in 1901 ; the Sugar Trust had 250 
in 1885 s-"*^! 11,000 in 1905."' The number of stockholders 
in national banks increased from 146,000 in 1876 to 330,124 
in 1905." Savings banks own $442,354,086 in railroads; 
colleges own $47,468,317; fire insurance companies $15,- 
756,249 ; and life insurance companies $668,262,896. ' Thus 
the form of a diffused estate seems to be provided. The 
property of this nature is to most stockholders an attenuated 
property, in the hands of agents. It remains to devise a 
plan for making those agents real agents instead of ma- 
jority stockholders with power to act chiefly in their own 
interest. Such corporate ownership might be known as 
representative or republican ownership. 

1 Adams and Sumner, op. cit., p. 359. 

- Wellman, in Revieiv of Revieivs, xxvii, p. 330. 

3 Social Progress, 1905. 

* Talcott Williams, in Social Progress, p. 292. 

5 Ibid. 6 Jifid, 

' Newcomb, Who Ozvjis the Railroads? p. 8. 



533] LIMITATION OF CORPORATE OWNERSHIP i^g 

Such possible diffused ownership of corporations is anti- 
cipated and perhaps accelerated by co-operative associa- 
tions, which, theoretically, are without the membership of 
" dominant interests." Co-operation is democratic distri- 
bution, or production, or use of credit as in building and 
loan associations. In 1904 there were 5,350 building as- 
sociations in the United States with a membership of i,- 
566,700 and assets of $599,550,855.^ In 1904 there were 
about 200 distributive co-operative stores in the United 
States." Besides communistic settlements there have been 
during the past forty years about 200 experiments in pro- 
ducers' co-operation. Besides the property co-operation 
there are associations of producers of every sort, such as the 
National Live Stock Association. These perhaps are an 
incipient form of estate, that may in time supplant the in- 
dividually controlled corporations. 

The most notable form of co-operative commercial prop- 
erty is insurance. A life insurance policy is property.^ 
Such property has increased from $5 for each person in the 
United States in 1850 to $85 in 1901.* The insurance in 
force was increased from 29,407 policies in 1850 to 21,182,- 
143 in 1904; from $68,614,189 to $12,547,937,441.^ All 
the manufacturing capital in the United States is estimated 
at $11,797,783,800 and the railroad capital at $12,599,990,- 
258.*' There were 15,674,384 industrial insurance policies 
in force '' compared with 7,696,229 savings bank accounts,. 

1 Statistical Abstract, 1905, p. 122. 

2 Adams and Sumner, op. cit., p. 402. 

3 Ionia Co. Savings Bank vs. McLean, 84 Mich., 629. 
* Anderson, in Annals Am. Acad., Nov., 1904. 

5 Statistical Abstract, 1905, p. 123. 

6 Annals Am. Acad., Sept., 1905, p. Z2)- 
'^ Statistical Abstract, 1905, p. 123. 



I90 DISTRIBUTION OF OWNERSHIP [534 

the policies were for $2,135,859,103 and the deposits were 
$3,269,236,119.^ The assets of life insurance companies 
were $2,498,960,968 in 1904 as compared with $387,- 
000,000 in 1874." The deposit currency of the country 
in the same year was $3,908,509,152/ The realization of 
the enormous sums represented in these policies must have 
some influence in the future distribution of ownership. 
They represent not merely savings but investment. Thus 
$2,000,000,000 of assets of insurance companies were in- 
vested; in bonds, 40 per cent; in mortgages, 27 per cent; 
in real estate, 8 per cent; in stocks, 7^4 per cent; in per- 
sonal notes, 7 per cent ; in cash, 4^x4 per cent ; in collateral 
loans, 3 per cent ; other investments, 3 per cent. The 
amount equals 40 per cent of the value of American farm 
products.* Some influence must be allowed to the fraternal 
insurance organizations, with their defiance of mathematics. 
These date from the A. O. U. W. of 1868. Such orders 
have 8,278,719 members. One hundred and fifty of these 
orders have promised to pay $6,000,000 of insurance.' 
Accident insurance, dating from the Hartford Travellers, 
1863, PS-'d in 1904, $19,332,539 of insurance. *"' 

With the social industrial functions which they assume 
many corporations accept the functions of charity, and so 
place upon other corporations the burden of future imita- 
tion. The assumption of any obligation beyond the con- 
tract obscures the outlines of contract. Thus when the 
workingman's soul is a charge upon the conscience, 
and more particularly upon the funds of his master, the es- 
tate of the workman increases. When the master invests 

^Statistical Abstract, 1905. p. 116. -Ibid., p. 123. 

^ Ibid., p. 114. * Annals Am. Acad.. Sept., 1905, p. 85. 

•'' Ibid., Nov., 1904, Abt. Landis. 

^Statistical Abstract, 1905, p. 124. 



535] LIMITATION OF CORPORATE OWNERSHIP igi 

in the ease as well as the labor of his man, he has admitted 
the personality of the laborer as an accepted infringement 
of the orbit of his ownership. The list of welfare under- 
takings now in force in various establishments is long, and 
welfare directors, social secretaries and sociological depart- 
ments are necessary to superintend the gardens, the edu- 
cational and industrial classes, the social clubs, the theaters, 
the schools for children, the cost-price lunch rooms, the 
gymnasiums, the medical departments, the libraries, flower 
funds, the sick benefits and picnic parties and a hundred 
things, not the least of which is the advertising of the phil- 
anthropic department. There are numerous relief and 
pension systems in force in industries, particularly the rail- 
roads. The Baltimore and Ohio Railroad in 1884 insti- 
tuted an old age pension system. Other great corporations 
have insurance systems of various kinds. The Pennsyl- 
vania Railroad allowed pensions to retired employes in the 
six years ending December 31, 1905, $2,004,087.59.^ 

Private philanthropy is active in the repair of bad distri- 
bution and possibly effects redistribution in so far as it has 
effects beyond immediately individual relief. Of a total 
of 4,207 benevolent institutions in the United States 2,359 
are private and 1,363 are ecclesiastical. The three classes 
cost respectively in 1903: public, $16,263,958 or 29.3 per 
cent; private, $24,163,099 or 43.5 per cent; ecclesiastical 
$15,150,576 or 27.2 per cent. Of these 2,004 have been 
founded since 1890." In Pennsylvania $500,000,000 of 
capital is invested in charitable institutions, or one-half the 
value of farming property or one-third of the value of man- 
ufacturing establishments.^ Twenty-nine per cent of the 

^ Report of the Penna. Railroad Pension Department. 
~ Census Bulletin on Charities, 1906. 
3 Social Progress, 1905, p. 98. 



192 DISTRIBUTION OF OWNERSHIP [536 

population of New York applied for aid in 1897/ Legal 
charity makes the status of the dependent more definite. 
Since the organization of the first Charity Organization 
Society (London, 1869) two hundred such societies have 
been organized in the L^nited States." Four hundred and 
seventy-five Y. M. C. A. buildings have been maintained 
at an expense of $26,260,870.^ One hundred and fifteen 
social settlements have cost $2,652,900.* Seventy-nine 
million dollars have been invested in institutional churches.'^ 
The benefactions, individual, religious, educational and 
charitable in the United States in 1904, exclusive of public 
appropriations, denominational or missionary contributions 
and of items of less than $5,000 were over $90,000,000." 
The total of such benefactions for the years 1893 ^o 1904 
is $696,000,000.' Notable recent gifts are that of John 
D. Rockefeller for tuberculosis study, $7,000,000; and 
for the educational fund $32,000,000; and Andrew Car- 
negie's pension fund of $10,000,000 for college teachers. 
It is estimated that the benefactions of the latter have 
amounted to $120,500,000. 

Private property becomes "clothed with a public interest" 
when it is directed to public uses and thus creates a public 
interest or property. Savigny says : " Property is founded 
on adverse possession matured by prescription." So con- 
cession is matured by prescription. A demand satisfied is 
a demand stimulated. Voluntary stewardship may be- 
come legal and political obligation. Of charity Aristotle 
said : ^ " The poor are always receiving and always want- 

1 Social Progress, 1905, p. 96. 

2 Devine, in Social Progress, 1905, p. 140. 

^Social Progress, 1905, p. 311. ^ Ibid., p. 299. 

5 Ibid., p. 209. « Ibid., p. 255. '^ Ibid., p. 186. 

s Politics, vi. 5. 



537] LIMITATION OF CORPORATE OWNERSHIP 1^3 

ing more and more, for such help is hke water poured into 
a leaky cask." In this the poor are very like the rich. 
Concession to the poor in any way may become a public 
partial right in private property, particularly in corporate 
property. So long as the dispossessed continue to live and 
multiply they must be a charge, legal and moral, directly 
or indirectly on existing ownership, an incident of estate, 
which isolated individuals may flout, but with which, never- 
theless, ownership as a whole is compelled to account, for 
its own continuance and security. Individual irresponsi- 
bility to society is tolerated only as it is isolated. If there 
is in the United States, as Leroy-Beaulieu and Marshall ^ 
think there is in Europe, an increase of the wealth of the 
poorer classes relatively to the richer, while practically all 
available and valuable wealth is with its increase in theory 
privately owned, the increase of the security of the poor 
must be a gain in part of some sort of estate, before there 
can be a diffused private property. Evidently private prop- 
erty is still in the ascendant. It is hard to demonstrate its 
continuance in its present form from statistics. The Census 
shows that less than one-half of the families owned homes 
and one-third of these are mortgaged. The wealth of the 
United States is variously estimated at from $90,000,000,- 
000 (Census) to $110,000,000,000.- $18,000,000,000 is 
agricultural wealth individually owned. Corporations own 
wealth of more than $25,000,000,000. It is estimated that, 
leaving out of consideration city real estate, corporations 
own more than half of American wealth, while one hun- 
dred years ago they owned but one per cent of the wealth.^ 
It is said that one-twelfth of the wealth of the United States 

1 Principles of Economics, i, p. 735. 

- Harvey, in World's Work, Feb., 1905. 

2 Williams, Social Progress, 1905, p. 292. 



194 DISTRIBUTION OF OWNERSHIP [538 

is represented at the meeting of the board of directors of 
the United States Steel Corporation, who control corpor- 
ations capitalized at $9,000,000,000/ The multiplication 
and the extension of the forms of partial ownership recited 
in this chapter seem to indicate some socializing of the 
centralized control of industry. 

Limitation of the common tolerance and existence of li- 
cense has been shown in the active disapprobation of slav- 
ery, in the increasing reflection on the " unearned incre- 
ment," and in the increasing subtraction from the "indefinite 
residuum " of private property both in land and in capital ; 
and lately by something of revulsion from the commercial 
spirit hitherto dominant, something of the Greek repulsion 
for the sordidness of trade that made Plato say that one 
might be punished for sharing in the illiberality of retail 
trade. The police power, applying the term, to the promo- 
tion of the public welfare through restraints upon the use 
of property, is a growth of the last quarter of a century. 
Almost none of the thousands of cases and statutes cited in 
Freund, The Police Pozvcr, had their origin before the 
Civil War. With increase of mass, the freedom of the in- 
dividuals is in the latter half of our national history, speak- 
ing roughly, decreased by the struggle for equality, the 
" infringement of orbit," the Spencerian integration of a 
new unity, which portends possibly some juster distribu- 
tion. After the culmination, under a centralized govern- 
ment, of the greatest allowable liberty, the efforts to pre- 
vent the destruction of the liberty attained, the many limi- 
tations herein considered, constitute a new centralization 
of government, which might be prophetic of a new liberty, 
a new individualistic period lying beyond any imminent 
limitation. This new centralization seems to be shown in 

1 Pratt, in World's Work, Dec, 1904. 



539] LIMITATION OF CORPORATE OWNERSHIP 195 

the recent national legislation on inspection of foods, on 
labor and railways, and the like. 

Real liberty, measured quantitatively, or by the numbers 
enjoying a degree of freedom, has increased through all the 
periods, perhaps, whether they have here been called 
periods of liberty or of limitation. Each period of liberty 
results in limitation, which conditions the new liberty. 
The possession of the savage was not liberty; it had no 
sanction but his own security. In the communism of the 
next period the individual had only the uncertain guarantee 
of the clan. Patriarchal ownership long had no sanction 
save that of the family. The Roman individual property 
was never fully extricated from the patria potestas. The 
private property of ancient times had not the guarantee of 
a democratic national unity. The security of the Empire 
— of mere personal government — was not as great as that 
of the state conceived as the people. The Greek Four Hun- 
dred confiscated property with less indirection than the 
modern " four hundred." At almost no time was the right 
to own property conceded equally to all classes within the 
state. Feudalism in its outcome meant greater security 
for the mass. Modern liberty of ownership has the sanction 
of more democratic unity. The internal integration of so- 
ciety as the great nations gird themselves for the com- 
mercial struggle will again give the mass greater security, 
more harmonious social adjustment, which is the only lib- 
erty possible in society. The status of the individual has 
now less the sanction of the lord and more the sanction of 
society. The lords are not the masters but the servants of 
society. One era of status sacrificed the individual. One 
era of private property sacrificed society. The only possi- 
ble general liberty is in balance of the two. 

If the recital of facts indicative of a more co-operative 
social adjustment seems to be too definitely explained as 



196 DISTRIBUTION OF OWNERSHIP [540 

estate this too great boldness may be offset by the deduction 
from history that no period of ownership has been char- 
acterized by the exclusive prevalence of one form of own- 
ership, and further by the fact that a higher degree of evo- 
lution is productive of a greater variety of forms. Hence 
if a new regime is foreshadowed, it may be one of equili- 
brium not only between individual parts of society, but be- 
tween competitive and socialized functions, perhaps between 
private property and estate. 



CHAPTER XI 

The Ethics of Ownership 

The data of this essay may be insufficient to show an 
alternation of the forms of private property and estate; 
but there can be no doubt that legal restriction is an inher- 
ent fact in ownership, that, strictly speaking there is no 
private property. Augustinus Triumphus said : ^ " Pri- 
vate property ceases to be such by natural law in case of 
necessity, by divine law for the sake of charity, by the 
civil law for the benefit of the state." Laws, however, are 
not so much the cause as the epitome of economic evolu- 
tion. Plato said : ^ " Those are the most amusing people 
in the world who imagine that with their everlasting enact- 
ments and amendments they will find some way of putting 
down the knaveries that are practiced in contracts, little 
thinking that they are in reality only cutting off the heads 
of a hydra." Yet where there is no restriction there is 
no law. 

Limitation of private ownership is not only historically 
and legally necessary, but it is a corollary to all theories of 
the right of property. The fundamental theory of the right 
of property, that it is a human necessity, is variously cahed 
the natural right, or the human nature, or the divine right 
theory. Thus Kant and Hegel and Green regard the being 
a man a sufficient title to property. But given many men 
and small substance, human nature and divine right cannot 
be monopolized without the infringement of an equal or 
potentially equal title. The " labor " and the " robbery and 

1 Dunning, W. A., Political Theories, p. 219. ~ Republic, ix, 426. 
541] 197 



198 DISTRIBUTION OF OWNERSHIP [542 

violence " and the " occupancy " theories are theories of ap- 
propriation. Locke would give to the laborer the work of 
his own hand which he actually uses. But to be rich one 
must use the labor of others. Mill says : ^ " The laws of 
property have never yet conformed to the principles on 
which this justification of private property rests." Proud- 
hon would not allow that wrong can be made right by pre- 
scription. Blackstone and Grotius and Savigny regard 
occupancy as a title. Upon these theories the limitation 
of past occupancy by present occupancy might be justified. 
Ownership of the present day worldwide commercial prop- 
erties by occupancy would be an attenuated position. It 
is now not man but money that occupies. The " legal evo- 
lution or utility " theory refers to a stage subsequent to 
necessity and appropriation. Property is a creature of law, 
which furnishes its ethical basis. " Banish governments 
from the earth and all its fruits are as much the common 
property of all mankind as the air and light," says Bossuet. 
" The inequality that now is has been introduced by the 
lawes civill," says Leviathan.^ The Servian code says : 
" Property is based on civil law, not on natural rights, on 
public utility of which law is the expression, not on abstract 
justice." ^ Property is not in having but in being allowed 
to have. If property is the subject of law it is subject to 
limitation. 

The academic theory of distribution among the factors 
of production according to their productivity leaves un- 
considered the actual distribution among individuals. It 
is therefore liable to misinterpretation as a justification of 
inequality of ownership. Capital is not a personality. 
Consequently in a distribution among men it is not entitled 

1 Political Economy, bk. i. 2 j • g^. 

' Quoted in Gide, Political Economy, p. 453. 



543] ^^^ ETHICS OF OWNERSHIP igg 

to receive anything. It is not capital that receives the re- 
turn for its productive use, but the owner of capital. Since 
capital accumulates while men decay, the ownership of 
capital to the second generation must find some other jus- 
tification than its productivity. When it is determined 
that capital produces so much and labor produces so much, 
and that capital accordingly should receive so much and labor 
so much, the laborer accepts the logic; but since capital is 
the product of labor alone he claims the title to it, and 
denies the title of those who have not labored. The 
laborer does not claim the product for larger consumption 
alone, although the larger ownership conceded to the capi- 
talist is usually so applied in part, but for economic se- 
curity and power, just as the capitalist wishes it. This se- 
curity, and not enjoyment, is the chief motive of ownership. 
In a period of enlightenment it seems probable that greater 
productivity would result from a better distribution of mo- 
tive. Thus adequate examination might show that both 
the theories of property and the economic theory of distri- 
bution require the limitation of private property. 

If, however, private property is conceived to be absolute, 
undelegated privilege, the spirit of ownership is arrogant, 
elementary, bestial. Lord Raoul of France may ride 
among his discontented villains and reason : 

" Now, dear knave, 
Be kind and tell me — tell me quickly, too — 
Some proper, reasonable ground or cause — 
Nay, tell me but some shadow of some cause — 
Nay, hint me but a thin ghost's dream of cause — 
(So will I thee absolve from being whipped) 
Why I, Lord Raoul, should turn my horse aside 
From riding by yon pitiful villein gang — 
Or ay, by God, from riding o'er their heads, 
If so my humor serve, or through their bodies, 
Or miring fetlocks in their nasty brains. 
Or doing aught else I will in my Clermont." ^ 

1 Lanier, Sidney, The Jacquerie. 



200 DISTRIBUTION OF OWNERSHIP [^44 

Some millionaire religionist will spiritualize Raoul and say- 
that the toiling multitude is the thorny stock that bears a 
rose. But the rose now begins to know whose sap flows in 
his petals, and to confess that the thorny stock has a 
property in his hues. Raoul has ceased to swagger, has 
changed from unconciliatory usage of subjects to covert 
sedition against masters. He is professing, perhaps, to 
hold his realm as the steward of his subjects. Steward- 
ship, private initiative, supplements the law and the logic 
of social limitation. " The ambition to so assist in read- 
justing industrial relations that manhood may not be held 
less deserving of conservation than property," ^ is not con- 
fined to the maladjusted. Many of the chief beneficiaries 
of the social undistribution inquire sincerely what they can 
do, without reasoning in academic fashion about the conse- 
quences of their doing. "' I believe that a divine discontent 
should enter the breast of every man who does not have a 
chance at all the privileges that other men enjoy." " Mr. 
Carnegie's gospel is this : " To set an example of modest, 
unostentatious living, shunning display or extravagance, to 
provide modestly for the legitimate wants of those depen- 
dent upon him and after so doing, to consider all surplus 
revenues which come to him simply as trust funds, which 
he is called upon to administer in the manner which, in his 
judgment is best calculated to produce the most beneficial 
results for the community — the man of wealth thus becom- 
ing the mere trustee and agent for his poorer brethren, 
bringing to their service his superior wisdom, experience 
and ability to administer." " A public sentiment is rapidly 
forming which views as a reproach a very rich man who 
lives or living dies without connecting himself and his name 

1 Small, in Am. Journal of Sociology, i, p. 571. 

2 Nezii York Times, Dec. 7, 1905. 



545] '^HE ETHICS OF OWNERSEIIP 201 

and memory by substantial benefactions with works edu- 
cational, philanthropic or charitable, for the benefit and 
welfare of his fellow men." ^ " There is no absolute own- 
ership in fee simple from the ethical standpoint." - Pri- 
vate property becomes a public trust. Thus Cecil Rhodes 
conceived political obligations of wealth. Another South 
African millionaire left money for the construction of a 
railroad. Pedro Alvarado in Mexico proposed to give $50,- 
000,000 toward the payment of the debt of the Mexican Re- 
public, because he took his millions out of the ground. 
Another rich man says : " The rights and interests of the 
laboring m.en will be looked after and cared for not by the 
agitators but by the Christian men to whom God in his 
infinite wisdom has given the control of the property in- 
terests of the country." The Lord is usually charged a 
rather high brokerage by his stewards ; but these sentiments 
indicate an ethical sense. The best example of stewardship 
at hand is that of Professor S. M. Babcock, of Wisconsin, 
who declined to take patents on his inventions, which, es- 
pecially the " Babcock Milk Test," are worth millions an- 
nually to the farmers, because he thought as a public ser- 
vant he ought to give the general public the benefit. The 
advantage of this sort of stewardship is that it prevents 
problems as well as contributes to their solution. 

Although the part of the church in economic affairs has 
always, perhaps, been that of the conservation of any ex- 
isting regime, the ethical basis of stewardship is easily 
found in the words of its leaders. Paul said : ' "And 
whether one member suffer all the members suffer with it." 
He had perhaps been reading Plato : " In a well ordered 
state the whole of society must feel the pleasures or pains 

^Dillon, in Am. Law Review, xxix, 188. 

2 lies, in Century, March, 1897. ^ j Qqj- 12: 26. 



202 DISTRIBUTION OF OWNERSHIP [546 

of each of its members." Aquinas said: "The possession 
of riches is not unlawful if the order of reason is observed ; 
that is to say that a man possess justly what he owns and 
that he use it in a proper manner for himself and others." 
St. Ambrose said : " The earth has been given to us in 
common. Why, O rich men, do you arrogate property to 
yourselves alone?" Bossuet said: "O rich men of today, 
if we go back to the beginning of things we shall find that 
the poor have not less right than you to the goods you 
possess." 

Aristotle states the principle of distribution : " It is 
clearly better that property should be private but the use 
of it common." ^ Sir Frederick Pollock - repeats Aristotle: 
" How to foster and maintain a state of generous friendship 
in which a man shall give and take in turn of the good 
things of life so that property shall in effect be several in 
title but common in use, that is the high social problem 
which the communist evades and the true statesman must 
attack." 

Law and thought and philanthropy are not ineffectual 
agents of progress. Hence the certainty of economic trans- 
formation by the evolution of property need not preclude 
expectant opportunism. Universal acquiescence would de- 
lay amelioration. One may enter the councils of the doc- 
tors of the diseased social body, see the doctors of the old 
school apply heat to the congestion and ice packs to the 
head and feet, while administering soperifics. The patent 
nostrum vendor is fond of bleeding and blisters; the osteo- 
path suggests friction — more competition. The mental 
science man proposes "economic property " — - a mental sub- 
stitute for actual property, and the faith-cure man cures 

^ Politics, ii, 8. 2 History of the Science of Politics, p.. 23.. 



547] T^HE ETHICS OF OWNERSHIP 203 

the patient's desire for cure and makes him prefer death 
here and fuhness of hfe hereafter. Any social solution is 
idle that assumes the possibility of a stable equilibrium of 
inequality, while human desire is a motive and imitation is 
a method. " The difference between man and man is not 
so considerable that one man can thereupon claim to him- 
self any benefit to which another may not pretend as well as 
he." " What do you suppose will satisfy the soul but to 
walk free and own no superior." Notwithstanding Aris- 
totle's dictum that it is more important to equalize desires 
than property; notwithstanding the power of poverty to 
substitute stolidity for the first pain of deprivation ; not- 
withstanding that habit is the great balance wheel of so- 
ciety — desire for economic equality persists as a motive and 
a force. Conservatism of the fortunate can never quell the 
desire of the poor, nor redundance diminish the appetite of 
the rich. As to the solutions just cited, " free and fair com- 
petition "is like a fair fight between the new-hatched chicken 
and the hawk. " Competition " as now used by econom- 
ists is highly diluted with its opposite. The nieiwi of 
" economic property " may be found less satisfying than 
the cove oysters and caviare of the tuum. The wind — if 
only the wind of envy — may whistle through the nieujii of 
"economic property" while the tnuui is purple and fine linen. 
Nevertheless if the prevision of the doctors runs with des- 
tiny their measures may accelerate its operations. It makes 
little difference in the outcome whether the contribution be 
one of amelioration or of irritation. 

The complacence of science can accept with equal cheer 
the sanguineness of socialism or the impotency of individ- 
ualism. Comte says : " Le profond sentiment des lois qui 
regissent les divers genres des phenomenes pent seul in- 
spirer une veritable resignation, c'est a dire une disposition 
a supporter avec Constance et sans espoir des compensations 



204 DISTRIBUTION OF OWNERSHIP [548 

des maux inevitables." Without being either alarmed or 
restrained by the possibility or the impossibility of social- 
ism, whether that has to one an ideal or a sinister sound, 
" the state may realize for society the benefits of mono- 
poly." ^ 

A wise opportunism is supported and indeed compelled 
by the inevitableness of change. The Charleston Courier 
said : " Ages must roll into the eternity of the past before 
any general scheme of emancipation can be attempted with 
the remotest probability of success." " Yet the funda- 
mental form of ownership was quickly changed. Glad- 
stone said : ^ " I freely own that compulsory expropria- 
tion is a thing which is admissible and even sound in prin- 
ciple." Herbert Spencer said: * " So it seems possible that 
the primitive OAvnership of land by the community, which 
with the development of coercive institutions lapsed in large 
measure or wholly into private ownership, will be revived 
as industrialism further develops." " It seems reasonable 
to assume that with each increment in the social product 
the people will conceive it to be to their advantage to in- 
vest added sums in the machinery of government." " " The 
time will come when men will perceive that it is as mon- 
strous for a father to bequeath to his son a controlling in- 
terest in a factory or a railroad as it would be now for the 
president of the United States to give to his daughter the 
city of New York as a dowry." '^ Instead the president is 
proposing a limitation of the size of fortunes. 

1 Adams, Relation of the State to Industrial Action, p. 47. 

- Quoted in Von Hoist, op. cit., ii, p. 118. 

3 Quoted in Bliss's Encyclopedia of Social Reform, p. 803 

* Sociology, ii, pp. 643-4. 

'' Adams, Finance, p. 39. 

" Small, Am. Journal of Sociology, Jan., 1896. 



549] ^^-^ ETHICS OF OWNERSHIP 205 

The indirect confiscations of the law, the diminution of 
private ownership by co-operative effort, the concessions 
of stewardship might conceivably produce a form of es- 
tate in which the relation of holders should be one of mu- 
tual security and support, instead of, as at present, a grada- 
tion of subjections in which the contributions of the less to 
the greater exceed the contributions of the greater to the 
less. The signs of equality in such estate are, however, il- 
lusory. And it must not be forgotten in this speculation 
that history is not logic. As one period has been charac- 
terized by patria-potestas, one by contract, one by fealty, 
one by liberty, the approaching period of balanced rights 
may be one characterized by equality. This "equality," how- 
ever, like the " liberty " of the past, can be only a word of 
faith, not of much actuality. This period may prelude one 
beyond in which fraternity shall succeed liberty and equality 
as creeds. But this is beyond the prevision of the present 
moral elevation of society. 

If there is to be a rebalancing of ownership in which the 
sanctions of economic and legal force shall yield in some 
small degree to the sanction of mutual satisfaction, what 
shall the new estate be called? Nostrism? Idemism? 
Quisquism? Ouilibetism? " Individualism" in its former 
sense has passed away, although the satisfaction of the in- 
dividual is the hope of every ism. "Altruism " is the 
flower, but not the root of society. " New Feudalism " is 
not applicable. There is no fealty; the " mesne lord " holds 
of his vassals. Because in the account of ownership here 
glimmered forth, contest is more potent than voluntary con- 
cession, co-operation is also too good a word. " Militar- 
ism," the regimentation of society, is of too narrow impli- 
cation. Socialism is an alarming word. Mutualism is a 
" symbiosis in which two organisms living together, mu- 
tually and permanently help and support one another." This 



2o6 DISTRIBUTION OF OWNERSHIP [550 

seems good, but describes more than probability. Perhaps 
" humanism " will sometime acquire sufficient popular con- 
tent to name the period, since the recognition and realiza- 
tion of humanity as an end is its chief theoretical character- 
istic. Under the prevalence of the stewardship idea, of the 
conception of delegated sovereignty in industry as in poli- 
tics, the present state of industry seems to approach the re- 
publican form rather than the democratic. Hence " indus- 
trial democracy " will not do, for there is little probability 
of democratic management in industry and less capacity for 
it. " Populism " has not the implication of the subjection of 
the individual to society that is ascribed to socialism, but 
it is disreputable and suggests the Roman " populares " as 
opposed to the " optimates." The problem is to find some 
word which could mean the same thing without being sus- 
pected by the privileged. 

Since no past stage of ownership is separable in fact or in 
name from the accompanying stage of political organiza- 
tion, unless it be the artificial separation of the laissez-faire 
period ; since economic status is the determinant of political 
power, it is difficult to find two names for the same thing, 
representative government in politics and in industry. As 
feudalism names both the economic and the political period 
of the past so republicanism may finally name the approach- 
ing age. But an economic stage is not an ism, and time 
must name it, however useful it might be to pack its theory 
into a word. 

Ameliorative measures may then be mediated without the 
prevalent unintelligent fear of either socialism or individ- 
ualism, or rather of the sinister and traditional connotation 
of these words so easily attached to them by any large class 
that is interested in maladjustment; since in all human his- 
tory and prevision both these are purely logical and ideal 
conceptions, and the alternation between their influences is 



55 1 ] THE ETHICS OF OWNERSHIP 207 

nothing but an alternation of tendencies that do not cul- 
minate. If they are ideals they need not be feared. Those 
who fear ideals that outrun their times, need only reflect 
that the prevalence of such ideals is reasonably sure to be re- 
tarded by the social ideals of the general mass, ideals which 
are usually retrospective and portend no change. It is not 
ignoble, however idle, eagerly and actively to anticipate any 
approach to mutualization of property, or republicanism, 
which, not by making nieuni and tuum nostra, but, by guar- 
anteeing a little of private ownership to the poor, might 
mitigate that poverty which is so damning to personality, 
so corrupting to social ties, so subversive of family affec- 
tions through the urgency of individual needs. 

Not only may the poor gain by readjustment, but the 
increasing social reprobation of the selfish acquisition and 
use of wealth, may lead also to the elevation of the rich, may 
convert some from social ideals like that of the Nar- 
rinyeri women, who consider it a disgrace not to be sold; 
may give to others some idealistic leaven of the economic 
motive, or some inkling that it is not necessary for " riches 
to be to men of understanding," that " happiness, whether 
consisting in pleasure or in virtue or in both, is more often 
found with those who are most highly cultivated in their mind 
and in their character and have only a moderate share of ex- 
ternal goods than among those who possess external goods 
to a useless extent but are deficient in higher qualities." ^ 
Under a regime of increased limitation of the possibilities 
of avaricious accumulation it might still be possible to in- 
dulge in the refinements of luxury — monkey dinners, 
donkey miniatures and the distinction of gout, or any other 
current refinement of the pride of the Tahitians in the cor- 
pulency of their women, as an evidence of prosperity." Re- 

1 Aristotle. 2 Spencer, Sociology, ii, p. 202. 



2o8 DISTRIBUTION OF OWNERSHIP [5^2 

striction, such as seems the logical conclusion of history, 
which leaves the possibility of large enjoyments of the 
" indefinite residuum " of private property, cannot be suffi- 
cient to deprive individuals of whatever their personality 
requires of the privileges of parasitism, whose effects are 
diminution of vital powers. Luxury and license and vul- 
garity can be exhibited without unlimited wealth. The 
margin between want and superfluity might be narrowed 
without lessening the freedom of personality to realize any 
disposition native to itself. Wealth is not absolute but rel- 
ative. The person whose superiority is egoistic might still 
be able to demonstrate superiority in property, without the 
existing gross inequality. Even the altruistic person whose 
altruism can be demonstrated only in cash need not be de- 
prived of opportunity to display his virtue and thus realize 
his personality. " The man who should be charitable with- 
out view to fruit would attain hereafter to the state of the 
immortals and even in this life would enjoy all the vari- 
ous gratifications that his fancy could suggest." ^ The 
pleasures of charity will not be abated by any probable re- 
strictions. " Suppose all fortunes to be equal, suppose all 
wealth and all misery to be suppressed, no one would have 
the means of giving, and no one would require alms. Even 
granting that it were true, you would have suppressed the 
sweetest, the most charming and the most graceful of hu- 
man virtues." ^ No probable equalization can abate the 
display of the virtue of justice. The history of ownership 
makes it impossible not to remember the contention of 
Thrasymachus in the Republic of Plato that justice is the 
right of the stronger. Any other conception of justice is 
a priori, and not derived from the history of the law. 
There will always be enough inequality to fortify the just 

'^ Manu, ii, 2. -Thiers, Du droit de propriete, p. no. 



553] ^^^ ETHICS OF OWNERSHIP 209 

man in his acquisitions and his dignity. Paine says : " The 
habit of thinking a thing not wrong leads to thinking it 
right." The just man, taking advantage of this human 
trait, may always enjoy the advantages of appropriating his 
strength to his own uses, saying with Plato : " I will de- 
scribe around me a picture and shadow of virtue ; behind I 
will trail the subtle and crafty fox." ^ There will still be 
enough of inequality to inspire Smithian rhapsodies on the 
division of labor. To quote from the master : " The very 
different genius which appears to distinguish men of differ- 
ent professions when grown up to maturity is not, upon 
many occasions, so much the cause as the effect of the 
division of labor." - The limitation of ownership might go 
far without disturbing the division of labor, by which 
" part of society lives without working and part works 
without living." ^ This economic harmony may be pre- 
served, by which society is like the syphonophorae, among 
which the eating is done by some individuals and the di- 
gesting by others. The ascent of individuals to a power, 
political and economic, befitting the capacities might be un- 
hindered even under some social limitations of the exercise 
of power. The preference for influence is not destroyed by 
the diminution of its power of exaction. The sympathy 
arising from the feeling, " whether one member suffereth, 
all the members suffer with it," is at least as great a re- 
finement of personality as that repulsion for social suffering 
which is usually meant by the sensitiveness and refinement 
that belongs to the *' second generation of privilege." 
This mutual possession, by 

" The instinctive theorizing whence a fact 
Looks to the eye as the eye likes the look," * 

1 ii : 365. ^ I : »• 

3 Loria, Economic Foundations of Society, p. i. * Browning. 



2IO DISTRIBUTION OF OWNERSHIP [^54 

might lead to some final rhapsody on the possible fulfilment 
of the current formula of democracy; the approach of the 
state to the Periclean ideal : " We aim at a life beautiful, 
without extravagance and contemplative without unmanli- 
ness : wealth is in our eyes a thing not for ostentation but 
for reasonable use." ^ In such a society the poet might rival 
the broker and contracts be defined, not by Blackstone, but 
by Shakespeare : 

" A contract of eternal bond of love, 
Confirmed by mutual joinder of your hands." 2 

" Among unequals what society 
Can sort, what harmony or true delight. 
Which must be mutual in proportion due 
Given and received." ^ 

Each might have opportunity 

" To earn for the body and the mind whatever adheres 
And goes forward and is not dropt by death." ^ 

It is not now necessary to disclaim unacademic presump- 
tion in assailing the gods Termini, who at the founding of 
Rome were the only minor gods that dared to defy Jupiter. 
It is idle to deny some unacademic personality of purpose 
in this essay. Truth that is impersonal is not worth pur- 
suit. It is unnecessary to confess the desire to contribute 
to the mitigation of property b)^ generosity. 

1 Quoted in Pollock. Science of Politics, p. 4. 

2 Twelfth Night, ii, line 160. 

3 Milton, Paradise Lost, viii, 385. * Walt Whitman.. 



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555] 211 



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VITA 

Joseph Harding Underwood was born in Rockingham 
county, Virginia, in 1874, son of Irvine Murray Under- 
wood, minister, and Elizabeth Harding Underwood, author. 
His early education was received in Shenandoah Institute, 
Virginia, in which institution he was also instructor in 
Greek. For some years he was engaged in various employ- 
ments in Kansas, West Virginia, Illinois and Iowa, particu- 
larly in printing and farming. At intervals he studied in 
the following colleges : Central College, Kansas ; Western 
College, Iowa; Mount Morris College, Illinois; and Beloit 
College, W^isconsin, He received the degree of B. A. from 
Western College (now Leander Clark College). 

He was Graduate Scholar and Fellow in Political 
Economy in the State University of Iowa, and Uni- 
versity Fellow in Sociology in Columbia University in the 
years 1902 to 1905. He received the degree of M. A. from 
Iowa University. In Columbia University he pursued 
courses in sociology under Professors Franklin H. Giddings, 
Henry R. Seager and H. E. Moore; in economics under 
Professors Edwin R. A. Seligman and John Bates Clark; 
in European and American political philosophy under Pro- 
fessor William A. Dunning. He also studied at Chicago 
University in 1906 under Professor Graham Taylor. 

Following his university courses he has held the fol- 
lowing positions : Instructor in English and History in 
Nora Springs Seminary, Iowa, 1905-6; Professor of 
History and Political Science in Leander Clark College 
(formerly Western College), Iowa, 1906-7; and Professor 
of History and Economics in the University of Montana,, 
since February, 1907. 



LIBRARY OF CONGRESS 



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